London,
14
April
2015
|
10:00
Europe/Amsterdam

Whistling at work: what is in the public interest?

Employment E-alert

The Issue

Workers reporting wrongdoing at work under the whistleblowing legislation must reasonably believe that their disclosure of information is in the public interest.

This “public interest” requirement was added in June 2013. It was intended to reverse the effect of case law that gave whistleblower protection to workers who disclosed information covering a breach of their own contracts of employment, which had been heavily criticised.

The Employment Appeal Tribunal has recently delivered the first appeal level decision on the meaning of “in the public interest”.

 

What is in the public interest?

Mr Nurmohamed was a senior manager at the estate agency, Chestertons. Following changes to the company's commission structure, he complained on three occasions about alleged manipulation of the company's accounts, which he believed had an adverse effect on his, and 100 other senior managers', commission income.

Mr Nurmohamed was dismissed and successfully claimed that he had been unfairly dismissed because he had reported this wrongdoing.

In addressing the question of whether the information reported by Mr Nurmohamed was made in the public interest, it was found that:

  • the relevant question is not whether the information in itself is in the public interest but whether the individual reporting it reasonably believes that it is in the public interest
  • when he reported his concerns Mr Nurmohamed believed that it was in the interests of the 100 senior managers and, based on the facts, that belief was reasonable
  • where a section of the public would be affected, rather than simply the individual concerned, this is sufficient for a matter to be in the public interest
  • a relatively small group may be sufficient to satisfy the public interest test. In this case, the affected group was the 100 senior managers. Although Mr Nurmohamed was most concerned about himself, he did have other office managers in mind.

 

Consequences and practical guidance

This decision sets a relatively low bar for the public interest test. Disclosures concerning personal disputes may amount to whistleblowing if the worker reasonably believes it affects a wider group. If so, workers will be protected under the whistleblowing legislation if they are subjected to any detriments or dismissed because they have reported those concerns.

Businesses should:

  • assess the risk of potential whistleblowing claims by workers who raise concerns about apparent personal disputes which they reasonably believe have a wider impact
  • review/update existing whistleblowing policies to include the public interest test
  • ensure that managers are trained in recognising potential whistleblowers, operating their whistleblowing policies and responding appropriately to reports of wrongdoing to minimise potential claims risk.

If you would like more information or advice on Employment issues, please contact Lydia Christie or a member of our Employment team.