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The recent decision of Chesterton Global Ltd v Nurmohamed (UKEAT/0335/14/DM), by the Employment Authority Tribunal (EAT) ruled on the meaning of the term 'in the public interest' contained in section 43B of the Employment Rights Act 1996 which was introduced in June 2013 by the Enterprise and Regulatory Reform Act 2013.
Here we examine the decision and ask what it means for employees in the future.
The Reason for Introducing the ‘Public Interest’ Test
Section 43B of the Employment Rights Act 1996 was introduced after the 2001 decision Parkins v Sodexho (2001 IDS 695; EAT). This case caused alarm among employers after the EAT held that a protected disclosure could be made about an actual or alleged breach of an employer’s legal obligation to an employee under their employment contract. This interpretation meant that whistleblowing legislation would cover employees regardless of how long they had worked for the organisation and the amount of compensation for damages that could be awarded were unlimited.
In response to this, section 43B of the Employment Rights Act 1996 was implemented. This section states that whistleblowers must believe that by making their disclosure they are acting in the public interest and show that their belief is a reasonable one.
The Facts of the Case
The claimant, in this case, was a Sales Director at the first respondent’s estate agency. He claimed that he was unfairly dismissed following protected disclosures he made stating that the first respondent was manipulating the figures in its accounts to the detriment of around 100 senior managers (including the claimant) who received part of their income on a commission basis.
The employment tribunal upheld the claim of automatically unfair dismissal, concluding that the disclosures were made in the reasonable belief of the claimant that they were in the interest of 100 senior managers, and that this was a sufficient group of the public to amount to a matter of public interest.
The respondents appealed to the EAT on the basis that:
- the tribunal was wrong in concluding that disclosures made in the interest of the 100 senior managers was a sufficient group of the public to amount to being a matter in the public interest; and
- it was for the Tribunal to determine objectively whether or not the disclosures were of real public interest, and this the tribunal had failed to do.
The Employment Appeal Tribunal Decision
The EAT upheld the tribunal’s decision. The Honourable Mr Justice Supperstone stated that when evaluating whether the test for public interest has been met, the court must look at whether the employee had a reasonable belief that their action was in the public interest, rather than objectively looking at whether the disclosure was in the public interest per se.
The court then went on to consider the objective of section 34B and held that it was introduced to prevent individuals from using the advantages of whistleblowing legislation when arguing that an employer had breached his or her employment contract and the effects of this breach were personal and did not affect the wider public interest in any way.
The Honourable Mr Justice Supperstone therefore concluded that a relatively small number of people (such as the 100 managers) satisfied the public interest test, and the claimant, although acting in his own interests, also clearly had the interests of the other managers in mind when he made his disclosures.
The Impact of the Decision
It is important for employees to note that the threshold for satisfying the public interest test under section 34B is reasonably low. To find out more about this decision, or to discuss any other employment concern, please phone our office for an appointment on.