02 August 2017 - Post by:Charlie Bowden
For a whistleblower to claim protection, the disclosure must be made in the reasonable belief that it is in the public interest. This may sound obvious as the name of the implementing legislation is the Public Interest Disclosure Act, but up until July 2013 workers were able to gain protection even if the disclosure related to breach of a legal obligation of their own employment contract, and it was motivated by personal reasons. This came from the Parkins v Sodhexo case, which was widely believed to have extended the scope of whistleblower protection beyond that intended by Parliament. The legislature stepped in and reworked the requirements so that the disclosure had to be in the public interest according to the reasonable belief of the whistleblower.
What does the phrase “in the public interest” mean, as it is not defined in the legislation? If an employee is being bullied by a line manager, would this satisfy the test? The employee may be motivated by self-interest, but it is possible that other employees may have been bullied too. It may also be indicative of a culture of bullying, which may be of interest to shareholders and investors, and potential recruits. But is this really in the public interest even if it applies beyond the workplace? Possibly, according to the Court of Appeal in a recent case which considered this question (Chesterton Global Limited v Nurmohamed). Although the Court rejected the notion of “bright-line” rules to answer this question, the judgement provide guidance which will be of assistance.
In the Chesterton case, the whistleblower, Mr Nurmohamed, was a Director of the Mayfair office of a residential estate agents. A new system for the payment of commission was introduced, which Mr Nurmohamed believed would have a serious adverse impact on his earnings, and those of 99 other managers. He also alleged that it amounted to manipulating the accounts in order to increase perceived profitability to shareholders. The nature of this disclosure was that it served both the personal interests of Mr Nurmohamed, and those of 99 other employees, but also had an external dimension in that Mr Normohamed thought that the shareholders were being hoodwinked into thinking a revenue stream was more profitable than it actually was.
In the Court of Appeal’s view, a disclosure that is personal in character may also have certain features that would make it “in the public interest”. Such features include the number of people affected, the nature of the wrongdoing, the type of interest affected, and the identity of the wrongdoer. Applying these factors to the case, the Court of Appeal took the view that the disclosure was in the public interest. It was not just a numbers decision. The wrongdoing was deliberate, and the culprit was a well-established and prominent business.
Where does this leave employers? The decision confirms that it is a low threshold for a whistleblower to show that he or she had a reasonable belief that the disclosure was in the public interest. It does not matter if the public interest element was not front-of-mind at the time of the disclosure, and only articulated subsequently. Neither is it a barrier to protection if the public interest was not the prime motive behind the disclosure. Defensive considerations would be better directed at other aspects, such as the causation between the disclosure and the detrimental treatment, if appropriate.