In June 2013 the whistleblowing provisions of the Employment Rights Act 1996 were amended to introduce a new requirement for a disclosure to be made in the public interest to qualify as a protected disclosure. It was thought (and hoped) by many employers that this amendment would help close the door to employees being able to pursue whistleblowing claims out of nothing more than a private dispute with their employer centred around a breach of their own terms and conditions of employment– an approach which had found favour with the EAT in 2001 in the case of Parkins v Sodexho.
Earlier this year, in the case of Nurmohamed v Chestertons Global Limited, the Court of Appeal was asked to consider whether a disclosure regarding the operation, and manipulation of a bonus scheme affecting the Claimant, Mr Nurmohamed, along with 99 other senior managers at Chestertons who were similarly affected, was sufficient to meet this new public interest test. In its decision, published this week, the Court of Appeal dismissed Chesterton’s appeal, and found that Mr Nurmohamed’s disclosure about the bonus scheme had been made in the public interest.
Preferring a multi-factorial approach, the Court confirmed that the number of people (including co-workers) whose wider interest may be served by the disclosure, in addition to the individual making the disclosure, was a relevant factor to be assessed but should not be the only or most predominant factor in assessing whether a disclosure was made in the public interest.
Other relevant factors in considering whether a disclosure is made in the public interest may include:
The nature of the alleged wrongdoing – a trivial or inadvertent wrongdoing is less likely to be in the public interest, even if the subject matter could potentially affect a large group of people. Here, Chestertons had been found to have deliberately manipulated its internal accounts resulting in a material mis-statement to the tune of £2-3M.
The identity of the wrongdoer – the larger or more prominent the wrongdoer, the more likely it is that the public interest test will be satisfied. As a well-known estate agent with national coverage, a disclosure regarding Chestertons wrongdoings were more obviously capable of engaging the public interest, than those of a smaller or lesser known agent.
Following this decision, the door is still very much ajar for employees to base their whistleblowing complaints on disclosures which, on the face of it, only advance their own private interests. This ruling provides even more reason for employers to treat all complaints seriously and ensure that appropriate whistleblowing procedures and managerial training is in place.
- Test Bullet