UK: Public Interest Test in Whistleblowing (Chesterton Global Ltd v Nurmohamed EAT)

28 April 2015

Ian Hunter, Emily Bell

This is the first Employment Appeal Tribunal case to consider the new public interest test in whistleblowing law.

The case of Parkins v Sodexho Limited in 2002 paved the way for claimants without the requisite period of continuous service for an unfair dismissal claim to bring one by the back door - via a whistleblowing claim founded on a breach of their own employment contract. However, in 2013, changes to the Employment Rights Act 1996 made it a requirement for those raising whistleblowing allegations to have a reasonable belief that the allegation involves an issue of public interest.

In this case, Mr Nurmohamed worked for the estate agency Chestertons. He brought a whistleblowing claim alleging that the agency was deliberately fiddling the accounts so that he and his fellow managers would receive less bonus/commission than they were entitled to. In addition to receiving an allegedly lower payment himself, he considered that about 100 other managers were affected.

In considering whether the public interest test was fulfilled, the Employment Tribunal considered what constitutes 'the public'. It accepted that a group of 100 people sufficed and that 'public' can mean a section of the public rather than the entirety. It went on to find in Mr Nurmohamed's favour and upheld his claims.

Following an appeal by Chestertons, the Employment Appeal Tribunal ("EAT") upheld the tribunal decision and went on to emphasise that it is the worker’s reasonable belief that is important rather than whether the allegation actually does in fact involve an issue of public interest. In the current case, the EAT did not view it as akin to a personal grievance about a private contractual matter because Mr Nurmohamed, although personally affected, believed that the disclosure was important for the whole pool of managers. He therefore believed the disclosure to be in public interest, and this belief was objectively reasonable. The fact that he worked for a private company rather than a public one did not undermine this.

How it impacts

The tightening up of law was good news for employers facing whistleblowing claims but this recent decision suggests that Tribunals may be able to take a fairly flexible view of what is an 'issue of public interest'.

Employers should be especially aware of employees raising grievances where the issues involved are not limited to that particular employee, as such complaints may form the basis of a subsequent whistleblowing claim.