Under UK law whistle-blowers are given special protection against detrimental treatment and dismissal where disclosure is made which, in the reasonable belief of the whistle-blower, is in the public interest. To gain such protection, the subject matter of the disclosure must fall within a specified list in the Employment Rights Act 1996 (ERA), one of which is a suspected breach or potential breach of a legal obligation.
Since whistleblowing protection was introduced concern has been raised that individuals were using the legislation to raise concerns a breach of the employment contract, so the legislation was amended in 2013 to make clear that only disclosures in the public interest gained special protection. A qualifying disclosure (which must be about specific matters since 2013) must also be “made in the public interest".
Chesterton Global Ltd (t/a Chestertons) v Nurmohamed is the first time Court of Appeal decision to examine exactly what needs to be satisfied to meet this new, higher hurdle.
The revised regime
First introduced in 1998, the protection given to whistle-blowers is valuable because unlike other unfair dismissal claims, a dismissal for whistleblowing does not have a financial cap to limit financial remedy.
The public interest change was introduced to address concerns illustrated by the case of Parkins v Sodexho where an employee who complained about having to operate a machine without supervision, asserted his dismissal as a result was a breach of his contract - the legal obligation relied on and a matter of health and safety. The case got as far as the Employment Appel Tribunal which said the provision at that time was “broadly drawn” and could encompass legal obligations under the personal contract of employment.
Some held the view this was not the intention behind the whistleblowing legislation; hence the amendment in 2013 which the Court of Appeal in Chesterton described as aimed at restoring the “original intention” of the legislation.
What is the public interest?
Chesterton centred on two aspects of this public interest provision:
- the meaning of public under the whistleblowing regime, and
- whether the motive of the whistle blower should be considered when assessing public interest - given the wording “made in the public interest”.
The leading judgment in the Court of Appeal was given by Lord Justice Underhill (with whom the other Judges agreed). The Court drew a distinction between the whistle-blower having a reasonable belief that a public interest exists (which is required) and the motivation behind making the disclosure. Underhill LJ made clear that whilst there must be a genuine and reasonable belief that the disclosure is in the public interest, that aspect does not have to be the only or indeed predominant motive. The question of good faith comes later in any whistleblowing case, going only to any award and damages.
Which brings us to the core issue - what amounts to public interest?
The Court was not persuaded that a clear distinction existed between the disclosure having to relate to something outside the workplace (attracting the protection) as opposed to workers/employees’ rights and complaints. It felt this would draw an artificial distinction. A more nuanced approach is needed because there may be circumstances where working conditions or employment issues have significant broader implications or public interests. The examples given include long working hours where the safety of the public might be jeopardised or pay irregularities which could flow into financial and profit statements. Nor could it be limited to circumstances where the employment related issue concerns a public sector employer.
The public element must be considered in each case by reference to all relevant factors. Where a whistleblowing issue or claim concerns breach of the individual’s own contract it may still be in the public interest; the Judgment explains the factors to consider in making this assessment (although not exhaustive) include:
- the identity of the wrongdoer - is it for example, a private company but with a prominent profile and/or with a large number of stakeholders - clients, customers and others
- the type of alleged wrongdoing, its seriousness and whether deliberate as well as the impact of the wrongdoing, and
- the number of the employees affected - the bigger the group the more likely a public interest.
It is not hard to see how businesses in certain sectors such as financial services (which already has strengthened whistleblowing obligations), telecoms or media, which have a high profile, large customer base and reach large audiences, can easily fall within these provisions.
In the Chesterton case the allegation was about internal accounts and Mr N’s commission (which was influenced by profitability), the Court concluded that the original Tribunal was entitled to conclude these could amount to protected disclosures and the appeal was dismissed by the Court of Appeal.
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