Employment Appeal Tribunal consider meaning of "in the public interest" for whistleblower protection
29th April 2015
The ‘public interest test’ was incorporated into the whistleblowing legislation by the Enterprise and Regulatory Reform Act 2013 so that disclosures made on or after 25 June 2013 would only constitute a qualifying disclosure if the worker reasonably believes that it was "in the public interest".
This ‘public interest’ test was considered for the first time by the Employment Appeal Tribunal (EAT) in the case of Chestertons v Nurmohamed.
In that case, Mr Nurmohamed (Mr N) was a director in the Mayfair branch of Chestertons’ estate agency (a private company). In late 2013, Mr N made several protected disclosure by complaining separately to both his line manager and the HR director that there were inaccuracies in the accounts and that the company were exaggerating their costs. This had the effect of reducing both his bonus together with that of around 100 senior managers across Chestertons.
As a result of this disclosure, Mr N was dismissed and he then brought a claim against Chestertons for automatic unfair dismissal for having made a protected disclosure.
The Employment Tribunal (ET) initially found that Mr N’s disclosure was made with a reasonable belief that it was 'in the public interest'. Chestertons then appealed the decision and the EAT considered the ‘public interest’ test for the first time.
The EAT upheld the decision and commented that the ‘public interest test’ is a question of belief and not fact. The test is whether the worker making the disclosure had a reasonable belief that it was in the public interest. Where a section of public would be affected, rather than simply the individual concerned, this would be sufficient for a matter to be in the public interest. Therefore it is not necessary to show that the matter is of interest to the entirety of the public as it is inevitable that only a section of the public will be directly affected by any given disclosure. The EAT found that a small group of affected persons may be sufficient to satisfy the public interest test; in this case 100 managers.
The EAT also commented that the ‘public interest test’ could be satisfied where the basis of the public interest disclosure was wrong or where there was no public interest in the disclosure being made. What was relevant was the worker’s belief that the disclosure was in the public interest and that belief being objectively reasonable.