12 June 2015 / by Employment/ in
Where is the “public interest” in the Public Interest Disclosure Act 1998?
Until the Public Interest Disclosure Act 1998 (PIDA 1998) was amended in 2013, the only place where the words “public interest” appeared was in the title. As such, if an employee found something he reasonably believed to be the breach of a legal obligation (including a breach of his own employment contract) and then complained about it, he gained all the protections of a whistleblower, even if the breach only affected his own interests.
Once whistleblower protections apply, any dismissal would be automatically unfair if the reason, or principal reason, for the dismissal was because such a complaint was made. The employee would not require any qualifying minimum period of service, and tribunals would not be restricted by the usual upper limit on compensation. It would also be unlawful for an employer to subject the employee to a detriment (including threats, disciplinary action, loss of work or pay, or damage to career prospects) on the ground that they made such a complaint.
However, in June 2013 the legislation was amended to prevent employees complaining about matters of pure self-interest in this way. As a result, an employee must now also show that he reasonably believes that his complaint or disclosure is made “in the public interest” in order to attract the above protections.
But what is the “public interest” and who is the “public” for this purpose? Theses were the questions that were addressed by the Employment Appeal Tribunal in Chesterton Global Ltd (t/a Chestertons) and another v Nurmohamed UKEAT/0335/14.
The whistleblower in this case, a director in the Mayfair office of Chestertons’ estate agency, made a protected disclosure by complaining that Chestertons was overstating costs for its London office, which allegedly drove down the bonuses for him and 100 senior managers.
The employment tribunal and the EAT found that the disclosure was made with a reasonable belief that it was “in the public interest”.
The EAT stated that an individual contractual dispute would not normally satisfy the public interest test but a disclosure relating to a relatively small group of people may do so. The EAT confirmed that the “public interest” requirement simply prevents a worker from relying upon a breach of his own contract of employment where the breach is of a personal nature and there are no wider public interest implications.
What does this mean for future whistleblowers?
This is the first case on the meaning of “public interest” in employment law since the legislation was amended in June 2013. The EAT’s judgment suggests that, contrary to what was written at the time the law changed, the new test will not provide a substantial barrier for whistleblowers.
The main points to takeaway are:
- Chestertons was a private limited company but this had no relevance to the public interest test.
- Whilst, on the facts of this case, a group of 100 employees was found to suffice to imply a public interest, employers should be cautious of relying on numbers alone in such circumstances.
- The more important issue will be whether the whistleblower is motivated by his personal interest or can demonstrate some broader purpose. The potential impact of an alleged disclosure should therefore be reviewed, including a consideration of the level of harm which the breach of legal obligation has caused or could cause (i.e. the more serious the harm, the smaller the affected population need be).
- An employee is now therefore likely to allege that his disclosure affects other people too. For example, not only may he allege that he has been unlawfully over-worked or over-heated or bullied in the workplace, but that these are all issues affecting his colleagues too (and the fact that none of his colleagues have complained does not mean that they are not also victims of breaches of a legal obligation).
- The Employment Tribunal will consider whether his concern about his colleagues is genuine or whether it is purely a stunt to circumvent the public interest requirement in order to obtain whistleblowing protection for what is in fact a complaint about his own personal position. For example, Mr Nurmohamed stressed throughout his correspondence with Chestertons that he was concerned more broadly than just about his own bonus, which was accepted as genuine by the Tribunal.