Protection for whistleblowers was introduced by the Public Interest Disclosure Act 1998. The Tribunals interpreted this legislation widely and decided that in order for an employee to be protected, a disclosure did not have to involve the interests of the public at large. In fact, as a result of the case of Parkins v Sodexho in 2002, employees were able to seek whistleblowing protection for breaches of their own personal employment contracts.

To narrow the scope of the legislation and reassert the public interest requirement, the law was changed in 2013.

As a result of this change, the number of whistleblowing cases in the Tribunal have reduced as it has become more difficult to determine the public interest requirement.

The Court Case

The Court of Appeal has recently, however, provided a key ruling in this respect in the case of Chesterton Global Ltd and another v Nurmohamed and another [2017].

Mr Nurmohamed was employed by Chesterton estate agents as a senior branch manager.  He had raised a number of complaints that the company was supplying incorrect information to its accountant, such as overstating actual costs, which resulted in lower commission payments to 100 senior managers, including him.

Mr Nurmohamed was later dismissed and he brought a claim against Chestertons in the Employment Tribunal.  It was found he had been automatically unfairly dismissed as a result of him making a protected disclosure.  Chestertons appealed this decision as they believed the disclosure was not made in the “public interest”.   The decision was, however, upheld by the Employment Appeal Tribunal. Consequently, Chestertons appealed to the Court of Appeal at which point the whistleblowing charity, Public Concern at Work, also became involved.

Chestertons argued that an issue could only be deemed “in the public interest” if it affected those beyond the employer’s workforce.  On the other hand, Public Concern at Work stated that an issue which affected anyone, other than the individual worker making the actual disclosure, should be considered to be “in the public interest”.

The Court of Appeal rejected both of these claims and stated that the question to be decided is “not what is in the public interest, but what could reasonably be believed to be”.  The belief in the public interest did not even have to be the predominant motive for the individual making the disclosure.

As a result, the Court has outlined four factors to be considered by Tribunals when deciding if a disclosure is in the public interest:

1. The numbers affected. The greater the number, the more likely the disclosure will be deemed in the public interest e.g. in this case 100 senior managers was deemed significant.

2. The nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed. If the disclosure involved inconsequential information, it is less likely this will be seen as being in the public interest.

3. The nature of the wrongdoing. If the misconduct was deliberate, it is more likely to be seen as being in the public interest than an unintentional act. In this case, the employer deliberately provided incorrect information to the accountants regarding costs and liabilities.

4. The identity of the wrongdoer. If the wrongdoer is considered large and prominent in their relevant field i.e. suppliers and clients, it is likely the wrongdoing will be considered in the public interest. In this case, Chestertons is considered a prominent business in the London property market.

The main consideration, however, will be whether the whistleblower believes the disclosure is “in the public interest” and whether, in the eyes of the Tribunal, that belief is reasonable.

Going Forward

There are no direct obligations on employers to provide employees with a whistleblowing policy. However, it is good practice for employers to take steps in order to reduce the risk to the business of a claim being pursued.  The following should be considered:

• Implement a policy and advise staff where it can be found;

• Provide training to staff on how to make and deal with disclosures. This should include details of who disclosures should be made to;

• If an internal disclosure is made, employers should keep the individual up to date with the steps that are being taken and a prompt investigation should take place;

• Reassure staff that if disclosures are made they will not face any detriment for doing so; and

• For larger companies, a disclosure hotline may be suitable.

If you would like a whistleblowing policy or for us to review your procedures, please contact Andréa or Rachel.