Last reviewed 31 October 2018

Gillian Howard reviews the whistleblowing legislation and discusses what is meant by the “public interest”.

Protection from dismissal or any detriment for blowing the whistle was first enacted by the Public Interest Disclosure Act 1998 (PIDA) after the Zeebrugge ferry and Piper Alpha disasters.

One of its key aims was to encourage workers to come forward to report serious wrongdoing on the part of their employers, or to report risks to health and safety, without fear of any detriment or dismissal for raising legitimate concerns. In doing so, it was hoped that malpractice could be identified and dealt with and that similar future disasters could be averted.

These provisions were then enacted in amendments to the Employment Rights Act 1996, ss.43–49.

Change in the law

A change in the law requiring any protected disclosure to be “in the public interest” came about principally because of a historical ruling in the Employment Appeal Tribunal (EAT) in 2002 in Parkins v Sodexho [2002] IRLR 109. Here, the EAT held that a complaint about a breach of the worker’s own contract of employment could constitute a qualifying protected disclosure.

This decision widened the scope of whistleblowing claims for workers who could then complain about acts of alleged discrimination or a failure to deal with a complaint of discrimination being a breach of s.43B(1)(b); reporting an alleged failure to follow an equal opportunities policy; and complaining that an employer had refused to honour the pay rates promised at a job interview. This all potentially could constitute qualifying protected disclosures.

Changes in the law

The Enterprise and Regulatory Reform Act 2013 introduced an amendment to the former whistleblowing provisions in the Employment Rights Act 1996 requiring the protected disclosure to be “in the public interest”.

The qualifying and therefore protected disclosure provisions in s.43B(1) of the Employment Rights Act 1996 now cover only disclosures which, in the reasonable belief of the employee making the protected disclosure, is “in the public interest” and tends to show one or more of the following.

  • A criminal offence has been committed, is being committed or is likely to be committed.

  • That a person has failed, is failing or is likely to fail to comply with any legal obligation to which they are subject.

  • That a miscarriage of justice has occurred, is occurring or is likely to occur.

  • That the health or safety of any individual has been, is being or is likely to be endangered.

  • That the environment has been, is being or is likely to be damaged.

  • That information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be “deliberately concealed.”

What is “in the public interest”?

What the words “a reasonable belief in the public interest” meant was unclear until the Court of Appeal interpreted those words in the case of Chesterton Global Ltd and another v Nurmohamed [2017] EWCA Civ 979.

The claimant was a director at the Mayfair office of the respondent (“Chesterton”).

He was dismissed for gross misconduct after making several allegations to a number of other senior members of staff about what he said were “discrepancies in the monthly accounts” which appeared to show that the profitability of the Mayfair office was being artificially suppressed so as to reduce the level of commission payable.

Other allegations made by Mr Nurmohamed were that a depreciation charge had been made which was higher than that budgeted for; and that a figure was included for "staff bonus" when none had been paid. He described this as "manipulating the accounts to the benefit of the shareholders".

Following his dismissal, he brought proceedings in the employment tribunal alleging that he had suffered detriments and been dismissed because he had made protected disclosures within the meaning of s.43B of the Employment Rights Act 1996.

The employment tribunal found that Mr Nurmohamed had made disclosures that accounts had been incorrectly stated to the benefit of shareholders, which affected the commission of over 100 senior managers including himself.

The employment tribunal held the disclosures were made in the belief of Mr Nurmohamed that it was in the interest of 100 senior managers, which was a sufficient group of the public to amount to being a matter in the public interest.

Chesterton appealed. When it came before the Court of Appeal it dealt with the meaning of the words “in the public interest”.

Lord Justice Underhill confirmed that a worker’s reasonable belief that their disclosure was made in the public interest has a subjective and objective element, applying the decision of Babula v Waltham Forest College [2007] EWCA Civ 174.

A claimant’s belief may be reasonable even if it is wrong. As a result, there may be more than one reasonable view as to whether a disclosure was in the public interest and a tribunal should avoid substituting its own view of whether the disclosure was in the public interest for that of the worker. This was to be expected and the real question turned on what the words “in the public interest” meant.

Lord Justice Underhill held that a worker’s reasons for making a protected disclosure are not strictly relevant to the legal issues.

The necessary belief is simply that the disclosure is in the public interest. The particular reasons why the worker believes that to be so are not important.

The worker must have a genuine and reasonable belief that the disclosure is in the public interest, that does not have to be their predominant motive in making it.

That said, the judges recognised that this is an important matter. They held that if the worker cannot give credible reasons for why he thought at the time that the disclosure was in the public interest, that may cast doubt on whether they really thought so at all.

The particular issue in this case was whether a disclosure, which is in the private interest of the worker making it, becomes in the public interest simply because it serves the (private) interests of other workers as well.

While making it clear that he did not think that there was much value in putting a general gloss on the phrase “in the public interest”, Lord Justice Underhill concluded that, where a disclosure relates to a breach of the worker’s own contract of employment, there may nevertheless be features of the case that make it reasonable to regard the disclosure as being in the public interest as well as in the personal interest of the worker.

The Court of Appeal confirmed that factors such as the following may be relevant.

  • The number of workers affected.

  • Nature of interests affected.

  • Nature of wrongdoing disclosed.

  • The identity of the alleged wrongdoer.

In Mr Nurmohamed’s case, the tribunal had found the disclosures to be in the public interest. The Court of Appeal upheld that finding.

In addition to the number of managers affected, the disclosures were said to be of deliberate wrongdoing, the alleged wrongdoing to the tune of £2–3 million was sizeable, and the employer was a substantial and prominent business in the London property market. Chesterton’s appeal was dismissed.