Whistleblowing remains a high profile topic and with the need for two years' service before an employee can raise an unfair dismissal case, more individuals are seeking to argue that they have made a protected disclosure so that their case can proceed.
If they are successful, the statutory cap on compensation is also removed. A recent case has addressed two questions on how the law on whistleblowing is being interpreted by the courts – how low is the threshold for a disclosure to be in the "public interest" and who assesses if it really is in the public interest?
Prior to 2013, a worker's disclosure (provided it fitted within certain specified topics) could be protected even if it was not "in the public interest". It seems odd that the protection that comes from a law called the "Public Interest Disclosure Act 1998" did not have this as a stated requirement but there was a loophole!
Things came to a head in a case when the courts held that a dispute about a failure to comply with a worker's contract was a "breach of a legal obligation" (one of the protected categories) and so whistleblower protection was triggered. Essentially a private dispute between employer and employee regarding the terms of a private contract was deemed to be covered by the legislation. Parliament sought quickly to correct the law by adding in some (highlighted) words to the test, making it:-
"any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following:-
(a) that a criminal offence has been committed, is being committed or is likely to be committed,
(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,
(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,
(d) that the health or safety of any individual has been, is being or is likely to be endangered,
(e) that the environment has been, is being or is likely to be damaged, or
(f) that information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed."
So how did this correct the apparent problem or did it still leave questions? Would the threshold to argue that a worker has raised a protected disclosure be raised?
In the case of Nurmohamed v Chesterton Global Limited, some of the issues were answered. The claim involved a director of an estate agency. He was concerned that the accounts were being manipulated and the effect was to adversely affect his entitlement under a commission scheme (involving himself and about 100 senior managers). He raised these concerns and was subsequently sacked. The question arose, did his disclosure satisfy the "public interest" test. While predominantly he was concerned for his own financial position, he argued that that because the issue mattered to at least 100 others (i.e. the other senior managers) this was a wide enough interest to meet the test. The EAT agreed.
They also confirmed that the question at the heart of the test was "what was the Claimant's reasonable belief?" So whether the disclosure was or was not actually in the public interest was not the question a Tribunal had to consider. It all depends on what the Claimant believed and whether that belief was reasonable. The worker could therefore be wrong in what they believe but provided the belief is considered reasonable (albeit wrong) the test was satisfied.
The case does to some extent confirm what most lawyers thought already. The hurdle to overcome to show that a disclosure is in the "public interest" appears to have been set at a low level and is relatively subjective. This does not help employers faced with what may appear initially to be a personal complaint relating to an essentially private matter between them and the worker. As always, erring on the side of caution and treating any complaint seriously is the sensible approach. Remember to look at all correspondence together – sometimes things that are not "whistleblowing" on their own can take on a different character when looked at together with other letters, emails etc.
For more information on whistleblowing and our recommended tips on what a business should do, see our earlier article and if you have any questions please contact us.
Debbie Fellows is a specialist Employment Law Solicitor. We are always delighted to talk without obligation about whether we might meet your needs. Call Debbie on 03330 430 150 or email dfellows@thorntons-law.co.uk
