The Public Interest Disclosure Act 1998 gives protection to employees who blow the whistle on malpractice by their employer.
The dismissal of an employee will be automatically unfair when the sole or principal reason for their dismissal is that they have made a “protected disclosure”. To qualify for protection the employee must satisfy a number of tests. One of these is whether the disclosure is made in the public interest, a requirement which was introduced to try to limit the number of claims for whistleblowing protection based on grievances relating to a worker’s personal contract.
In the case of Chesterton v Nurmohamed the Court of Appeal considered the meaning of “public interest” in the context of whistleblowing legislation, and its decision may widen the number of people seeking to gain protection.
Mr Nurmohamed (Mr N) was employed by Chestertons as an estate agent until his dismissal in October 2013. Prior to his dismissal Mr N had complained that Chestertons were manipulating their accounts so as to reduce commission payable to him and around 100 senior managers.
Following his dismissal he pursued a number of claims against Chestertons on the grounds that he had made protected disclosures. His claim was upheld by the employment tribunal. Chestertons appealed on the grounds that the public interest test was not satisfied just because other employees were also affected by his complaint. They argued that it was still a private complaint about his own employment contract and argued that the issue had to extend outside the workplace.
The Court of Appeal disagreed and upheld the tribunal’s findings. They decided the fact that whilst a disclosure relating only to other employees is not normally enough in itself, a disclosure does not have to extend outside of the workplace for it to satisfy the public interest test. In this case, relevant was the number of employees affected, the size of the alleged account manipulation (£2-3m) and that the alleged action was deliberate. The fact that Chestertons is a prominent national estate agent was also a relevant factor.
The factors to consider are:
- The numbers in the group whose interests the disclosure served. In practice, the larger the number of persons whose interests are engaged by a breach of their contracts, the more likely it is the situation will engage the public interest.
- The nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed.
- The nature of the alleged wrongdoing. Disclosure of deliberate wrongdoing is more likely to be in the public interest than inadvertent wrongdoing.
- The identity of the alleged wrongdoer. The larger or more prominent the wrongdoer the more obviously should a disclosure about its activities engage the public interest, though this principle should not be taken too far.
This case reinforces the fact that an employee complaining about a breach of their own employment contract is still possible notwithstanding the public interest test. Whether or not the test is passed will depend on the circumstances of the case, taking into account the above factors. This is likely to reduce certainty in this area, since whether or not a whistleblowing claim in relation to an employment contract breach will succeed will be extremely fact sensitive.
The Court has effectively left open the prospect of a breach of a worker’s own employment contract to be regarded as being in the public interest. The court did say that tribunals should be cautious about reaching such a conclusion. In principle it is likely to be in limited circumstances that a tribunal will be prepared to find such a disclosure in the public interest.
The ruling will remind employers to consider whether an employee’s complaint about a breach of their employment contract could amount to a whistleblowing complaint.