Public interest tested
Labour & European Law Review Weekly Issue 415 15 April 2015
The Employment Appeal Tribunal (EAT) has delivered its first decision on the meaning of the words “in the public interest” when considering a whistleblowing case being pursued after the legislation was amended in 2013.
It decided in Chestertons and Anor v Nurmohamed that, although the case concerned a contract dispute relating to only 100 senior managers, it still satisfied the new test because they constituted a “sufficient group of the public” for the matter to be in the public interest.
In this case, the whistleblower made three alleged protected disclosures that senior management at Chestertons estate agency was deliberately manipulating the accounts, thereby affecting the earnings of 100 managers, including himself. The tribunal held that where a section of the public would be affected (rather than simply the individual concerned), this was enough on the specific facts for the matter to be “in the public interest”.
The EAT has now upheld that approach, finding that the tribunal asked itself the right question, which was whether the whistleblower made the disclosures in the reasonable belief that they were in the public interest as opposed to whether they actually were in the public interest or not on an objective basis.
It made clear that the aim of the provisions was to protect employees from unfair treatment as a result of reasonably raising genuine concerns in a responsible way about wrongdoing in the workplace. The point of introducing the words “in the public interest” was simply to prevent a worker from relying on a breach of their own contract if the breach was personal to them and there were no wider public interest implications.
In this case although Mr Nurmohamed was most concerned about himself, he had the interests of the other managers in mind which meant that a section of the public was affected and the public interest test was satisfied.
Neil Todd of Thompsons Solicitors commented: “This case demonstrates that the words “in the public interest” were introduced to do no more than prevent a worker from relying on a breach of his or her own contract, where the breach is of a personal nature and there are no wider public interest implications.”