Whistleblowing protection

Graham Richardson considers the implications of a recent Employment Appeal Tribunal decision on the meaning of “in the public interest” in the context of whistleblowing legislation.

The original legislation

For most of its history the Public Interest Disclosure Act 1998, which provides whistleblowing protection to employees, was a legislative misnomer. While the words “public interest” appear prominently in the title of the Act, historically a disclosure did not have to be in the public interest to enjoy the protection of the legislation.

This principle was established in the case of Parkins v Sodexho (2001) in which the Employment Appeal Tribunal confirmed that the whistleblowing legislation was wide enough to protect an employee making a complaint about a breach of his own contract of employment by his employer, apparently without any requirement for the complaint to have a public interest aspect.

This drew criticism from some commentators who felt that whistleblowing legislation had been extended beyond what had been originally intended, allowing opportunistic employees to obtain significant whistleblowing protections by making disclosures about matters which affected no-one but themselves.

Amendments to the legislation

In 2013 the Government took steps to close this perceived “loophole” by amending whistleblowing legislation so that in order to have legal protection in respect of a disclosure made on or after 25 June 2013, the worker would need to show that they reasonably believed the disclosure to be “in the public interest”.

Perhaps in the interests of balance, the Government, when putting up the public interest hurdle to bringing a whistleblowing claim, removed a different hurdle. It had previously been a requirement of whistleblowing protection that the disclosure was made “in good faith” – this requirement was removed from the legislation.

While it was apparent that the Government had introduced a new hurdle to bringing a whistleblowing claim, it was unclear exactly how high that hurdle was. While the Government had brought a public interest requirement into the whistleblowing legislation, it had not included any definition of “in the public interest” in the amended legislation. This left both employers and employees unclear as to how it would be decided whether any given disclosure was in the public interest. This was clearly an issue which was ripe for litigation.

The Employment Appeal Tribunal decision

The issue fell to be considered by the Employment Appeal Tribunal in the recent case of Chesterton Global Ltd and another v Nurmohamed (UKEAT/0335/14). Mr Nurmohamed was a Senior Manager at an estate agents and made disclosures in which he alleged that management at his employer had manipulated the company accounts, potentially adversely affecting his bonus entitlement and that of about 100 senior managers. Mr Nurmohamed was dismissed and bought a claim in the Employment Tribunal that he had been automatically unfairly dismissed for making a protected disclosure under whistleblowing legislation. The Employment Tribunal upheld his claim, and Chesterton appealed to the Employment Appeal Tribunal.

Chesterton argued that making an allegation affecting 100 senior managers but not affecting the wider public was not a disclosure “in the public interest” and was therefore not protected by whistleblowing legislation. The EAT was required in its decision to determine whether Mr Nurmohamed had reasonably believed his disclosure to be in the public interest or not.

The EAT quoted the Employment Tribunal’s original Judgment, which in effect stated that, while the term “in the public interest” was not defined in the legislation, it did not require a disclosure to be of interest to the entirety of the public, and that “where a section of the public would be affected, rather than simply the individual concerned, this must be sufficient for a matter to be in the public interest.” While the EAT did not expressly approve this extract from the Employment Tribunal’s Judgment, it is consistent with the approach that the EAT took in its own decision.

The EAT also observed that guidance in other areas of law as to the meaning of the “public interest” is not of assistance in interpreting how this should be construed in the context of whistleblowing legislation. It appears that the reason for this approach was that the EAT believed that the sole purpose of the “in the public interest” amendment to the whistleblowing legislation was to close the Parkins v Sodexho “loophole” (described above). The EAT also observed that the relevant question is not whether the disclosure is in fact in the public interest, but whether the worker had a reasonable belief that their disclosure was in the public interest. In this case they found that he did.

Meaning of “in the public interest”?

The Chesterton case was decided on its own facts, and the EAT did not attempt to draw out wider principles as to what may or may not be reasonably considered to be in the public interest in other cases. In the Chesterton case, the disclosure of issues alleged to affect 100 senior managers was found to satisfy the public interest test, but what about something only affecting 50 employees, or 10 employees? Where should the line be drawn? The EAT did not give any clear guidance on this, simply observing that “…a relatively small group may be sufficient to satisfy the public interest test. What is sufficient is necessarily fact sensitive.”

Employers and employees therefore remain in a position where they have no clear guidance on what can reasonably be considered to be in the public interest for the purposes of whistleblowing protection. However, it now appears clear that a disclosure does not need to be of interest to the whole public, or even of interest to a large section of the public, to be “in the public interest”. As such, while there remains a public interest hurdle to whistleblowing protection, it would appear that the hurdle is set relatively low, although exactly how low remains unclear.

Employers would therefore be well advised not to assume that an individual has no whistleblowing protection just because their disclosure only affects a section of the workforce and not the wider public.

Graham Richardson is a Legal Director at Bond Dickinson LLP. He can be contacted on 0191 279 9456 or This email address is being protected from spambots. You need JavaScript enabled to view it..