Whistleblowing update: Reasonable belief and public interest

Topics covered: Ridouts professional advice

This month, the Employment Appeal Tribunal in the case of Chestertons v Nurmohamed [UKEAT/0335/14/DM], provided guidance on what amounts to a whistleblowing disclosure being made in the ‘public interest’.

Legislation requires that when an employee makes a whistleblowing disclosure they must have a ‘reasonable belief’ that the disclosure is being made in the ‘public interest’ in order to benefit from whistleblower protection. The requirement that a protected disclosure should be in the public interest (inserted into s.43B of the Employment Rights Act 1996 by s.17 of the Enterprise and Regulatory Reform Act 2013) was introduced primarily to remove whistleblower protection from workers who made disclosures about an employer’s alleged breaches of their own personal contract of employment, where such breaches had no wider public interest.

In Chestertons, a director of the estate agency complained that the costs of the business were being misstated which resulted in the commission levels for himself and 100 senior managers, all of whom participated in the same commission scheme, being lowered. Chestertons argued that the disclosures were not sufficient to meet the public interest requirement as they were effectively made in the context of a personal dispute relating to the commission payable under the director’s contract of employment.

The EAT disagreed and held that the disclosures satisfied the public interest requirement because the disclosures were made in the reasonable belief of the director that they were in the interest of 100 senior managers, and that that is a sufficient group of the public to amount to be a matter in the public interest. Also the question for consideration under s.43B(1) of the 1996 Act is not whether the disclosure is in the public interest per se but whether the worker making the disclosure has a reasonable belief that the disclosure is made in the public interest.

Effect on Employers

Employers should be aware that as a result of this decision contractual breaches alleged by workers, in particular where the breach would affect a number of workers, may be sufficient to attract whistleblowing protection.

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