{"id":3131,"date":"2017-07-11T15:59:08","date_gmt":"2017-07-11T15:59:08","guid":{"rendered":"https:\/\/www.riaabarkergillette.com\/uk\/?p=3131"},"modified":"2024-11-19T20:36:14","modified_gmt":"2024-11-19T20:36:14","slug":"whistleblowing-public-interest-test","status":"publish","type":"post","link":"https:\/\/www.riaabarkergillette.com\/uk\/whistleblowing-public-interest-test\/","title":{"rendered":"Whistleblowing and the Public Interest Test"},"content":{"rendered":"\n

The Public Interest Test<\/h3>\n\n\n\n

Under current whistleblowing<\/a> legislation, a worker must make a \u2018qualifying disclosure\u2019 to be protected against any detriment or dismissal.<\/p>\n\n\n\n

A \u2018qualifying disclosure\u2019 is any disclosure of information which is made and believed to be in the public interest and tends to show that one or more of the six specified types of wrongdoing has, have or is likely to take place, i.e.:<\/p>\n\n\n\n

    \n
  1. a criminal offence;<\/li>\n\n\n\n
  2. someone\u2019s health and safety is in danger;<\/li>\n\n\n\n
  3. risk or actual damage to the environment;<\/li>\n\n\n\n
  4. a miscarriage of justice;<\/li>\n\n\n\n
  5. the company is breaking the law; and\/or<\/li>\n\n\n\n
  6. you believe someone is covering up wrongdoing.<\/li>\n<\/ol>\n\n\n\n

    There is no definition of \u2018public interest\u2019 in the Employment Rights Act 1996 (ERA 1996<\/a>), but the Employment Appeal Tribunal (the EAT<\/a>) have considered it twice. The words \u2018in the public interest\u2019 were added to section 43B(1)<\/a> of the ERA 1996 for disclosures made on or after 25 June 2013.<\/p>\n\n\n\n

    This was intended to reverse the effect of Parkins v Sodexho Ltd<\/a>, in which the EAT held that the definition of a \u2018qualifying disclosure\u2019 was broad enough to cover a breach of the whistle-blower\u2019s employment contract, despite the fact that the case did not appear to have a \u2018public interest\u2019 aspect.<\/p>\n\n\n\n

    Chesterton Global Ltd (t\/a Chestertons) & Anor v Nurmohamed<\/h3>\n\n\n\n

    The facts<\/h4>\n\n\n\n

    The estate agent, Chestertons, employed Mr Nurmohamed. In 2013, following changes to the company’s commission structure, Mr Nurmohamed made disclosures to the directors in which he complained about the manipulation of the company’s accounts, which he believed had an adverse effect on his commission income.<\/p>\n\n\n\n

    Mr Nurmohamed claimed that the company was deliberately supplying inaccurate profit and loss figures to its accountants, which overstated its costs and liabilities. This resulted in lower commission payments for around 100 senior managers (including Mr Nurmohamed). This, in turn, made the company appear more profitable to its shareholders.<\/p>\n\n\n\n

    Mr Nurmohamed was subsequently dismissed and took legal action against Chestertons.<\/p>\n\n\n\n

    Employment tribunal findings<\/h4>\n\n\n\n

    An employment tribunal found that Mr Nurmohamed had been automatically unfairly dismissed and that Chestertons had subjected him to detriments because he had made protected disclosures.<\/p>\n\n\n\n

    Noting the lack of authority on the meaning of \u2018in the public interest\u2019, the tribunal said that it was not required that a disclosure had to be of interest to the entirety of the public, as it was inevitable that only a section of the public would be directly affected by any given disclosure.<\/p>\n\n\n\n

    The tribunal concluded that it was Mr Nurmohamed’s reasonable belief that the disclosures were in the interest of the 100 other senior managers of Chestertons and that this was a sufficient group of the public to constitute being \u2018in the public interest, and even though Mr Nurmohamed had been motivated by concerns about his own income.<\/p>\n\n\n\n

    Chestertons appealed the finding in the EAT, arguing that:<\/p>\n\n\n\n