Whistleblowing claims: Whose interest are they in?

The law on protection for “whistleblowers” is contained within the Public Interest Disclosure Act 1998. A couple of years ago the Government made some amendments to this Act, the most important of which was widely reported to be a new requirement that disclosures needed to be made in the “public interest” in order to be protected. Curiously, despite the name of the legislation, before these amendments the law included no requirement for a whistleblowing disclosure to be in the public interest. Following the case of Parkins v Sodexho Limited, this often led to employees making whistleblowing allegations about breaches of their own contract of employment, often in order to negotiate a higher severance package for themselves.

The law was changed to prevent this and close what many people saw as an unnecessary and unintended loophole. Taylor & Emmet have closely tracked the progress of this and other changes in whistleblowing legislation blogging on the change here.

The recent case of Chesterton Global Limited and anor v Numohamed is the first reported Employment Appeal Tribunal (EAT) case which looked at the definition of “public interest” under the new law. The EAT upheld a Tribunal decision confirming that a whistleblowing disclosure can be made if the employee has a “reasonable belief” that it is in the public interest, even if the disclosure relates to a dispute which affects a group of staff rather than the wider public.

In this case the Claimant was employed as a Director of a firm of estate agents. He made disclosures to his employer alleging that deliberate inaccuracies in the statements of costs and liabilities were affecting the way commission was being calculated. He alleged that this was resulting in lower bonuses for over 100 senior managers, including him. After making the allegations the Claimant was dismissed. He complained that, among other things, he was automatically unfairly dismissed for having made a whistleblowing disclosure. The EAT made two significant findings when deciding this case:

1. Whilst it is likely that the Claimant was thinking primarily about himself when he made the disclosure, the EAT upheld the Tribunal decision that he also had the other senior managers in mind and as this related to a specific class of people this met the public interest disclosure test, even though only around 100 managers were affected; and
2. The public interest test can be fulfilled even where the foundation of the disclosure is wrong or where there is no public interest, but the worker’s belief that the disclosure was made in the public interest is objectively reasonable.

Whilst the EAT confirmed that the changes to the law on whistleblowing in 2013 meant that a complaint about a breach of a worker’s own contract of employment would no longer be considered a protected disclosure, a disclosure relating to a relatively small group of people working for the employer may do.

We are seeing the Tribunals lowering the threshold for what is in the public interest which shows their continued inclination to interpret the legislation in a way that ensures that genuine whistleblowers are protected wherever possible, even if this can produce decisions which are on the face of it curious. This is only the latest in a series of cases which confirms that this is the direction of travel. I wrote a blog on two other cases which expanded the scope of the definition of a whistleblowing disclosure which you can read https://www.tayloremmet.co.uk/blogsite/more-ways-to-blow-the-whistle/.

The Small Business, Enterprise and Employment Act grants the power for new regulations requiring “prescribed persons” to produce annual reports of protected disclosures. The form of these reports still needs to be finalised. In addition, we await regulations setting out special protection to prevent discrimination against applicants for NHS roles on the grounds they have made protected disclosures. Stay tuned for more whistleblowing updates as a result!