Public interest satisfied
Labour & European Law Review Weekly Issue 421 27 May 2015
Following an amendment in 2013 to the 1998 Public Interest Disclosure Act, a worker making a qualifying disclosure has to have a reasonable belief that it is “in the public interest”. In Chesterton Global Ltd and anor v Nurmohamed, the Employment Appeal Tribunal (EAT) held that a contract dispute affecting 100 senior managers constituted a “sufficient group of the public” to satisfy the test of being “in the public interest”.
Mr Nurmohamed was the head of the sales department of the Mayfair office of Chestertons estate agency. In August 2013, he made the first of three alleged protected disclosures concerning the company’s accounts which, he said, were being manipulated by senior management to the benefit of shareholders but which adversely affected the earnings of 100 senior managers, including himself. He repeated his concerns in September and October.
He brought a claim for automatic unfair dismissal on the ground that he had made protected disclosures.
The tribunal held that Mr Nurmohamed had make a number of disclosures alleging that the company was deliberately misstating £2 to 3 million of actual costs and liabilities through the office and department network. The primary focus of his statements was the way in which these changes affected the earnings of over 100 senior managers.
As this was the first time that a tribunal had been asked to consider the meaning of the words “in the public interest” after the legislation was amended in 2013, it had to decide for itself what the words might mean. It concluded that as Mr Nurmohamed had made the disclosures in the reasonable belief that it was in the interest of over 100 senior managers, this was a “sufficient group of the public to amount to being a matter in the public interest” under section 43B(1) of the Act.
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.
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.
This decision is the first authority to consider the words ‘in the public interest’ and suggests that Employment Tribunals will apply a broad interpretation of the words ‘in the public interest’ in order to ensure that whistleblowers are sufficiently protected.