What counts as ‘in the public interest’ for whistleblowing claims?
What does the term ‘public interest’ mean? In relation to whistleblowing, it could be thought to refer to the public as a whole – that is, to the effect of a protected disclosure on society in general. However, two recent cases have shown that this is not necessarily so.
In 2013, changes were made to the law on whistleblowing, including the introduction of a new public interest requirement. Protection under the law now depended on a reasonable belief in the mind of the employee that the disclosure was made in the public interest. Previously, the law (Public Interest Disclosure Act 1998) had protected workers who had complained about their own contracts of employment but this led to a large number of cases which were not necessarily related to the public interest.
Nevertheless, the inclusion of the public interest requirement still needed clarification on what the ‘public interest’ actually was. This clarification was not long in coming. In March 2015, the case of Chesterton v Nurmohamed came before the Employment Appeal Tribunal.
Nurmohamed was a director in one of the offices of Chestertons when he made three alleged protected disclosures regarding what he believed to be mis-stating of costs and liabilities affecting the earnings of one hundred senior managers, including himself.
He was dismissed because of this and the Employment Tribunal decided that one hundred senior managers was a large enough group to count as the public for the purposes of the public interest defence. The Employment Appeal Tribunal later agreed with this judgment.
They said that the question was not whether the disclosure itself was in the public interest but whether the whistleblower had a ‘reasonable belief’ that it was.
It also showed that something does not have be of interest to the public as a whole in order for it to be ‘of public interest’. Examples used by the Tribunal included negligence by hospitals or drug companies, where only a section of the public might be affected.
Subsequent to the case of Chesterton v Nurmohamed, another case has been ruled on by the Employment Appeal Tribunal that confirms the original ruling and more clearly defines what constitutes the public interest.
Underwood v Wincanton
Mr Underwood worked as an HGV driver. Along with three of his colleagues, he raised a formal complaint to his employer about the terms of their employment contracts, alleging that drivers who had expressed concerns about the safety and road-worthiness of vehicles were given less overtime.
Not long after he had raised the complaint, Underwood was dismissed. Believing that his dismissal was due to the protected disclosure he had made, he raised a claim of automatically unfair dismissal.
The Employment Tribunal judge dismissed the claim, saying that a contractual dispute between private sector employees and their employer was not a matter of public interest. Underwood decided to appeal the decision.
The Employment Appeal Tribunal, which convened after the decision on Chesterton v Nurmohamed, said that the original Tribunal decision had been wrong in that the interpretation of ‘public interest’ had been too narrow. The claim related to concerns about vehicle safety and road-worthiness and therefore could have an effect on the public outside the confines of Wincanton plc.
If there is a connection to health and safety, or another public interest issue in a case, employees may well bring claims founded on concerns about their own contracts. If it is possible for an employee to prove that their dismissal was the result of a protected disclosure, the normal two years’ service requirement for them to bring a claim of unfair dismissal is not required. In this case, the dismissal will automatically be unfair and, more worrying for employers, there is no compensation cap.
What employers should do
Employers may need to look again at the wording of their whistleblowing policies and see if they need redrafting to ensure compliance with the law.
At the Tribunal stage, should a claim progress that far, the tribunal judge may want to verify the employee’s claim that they had a reasonable belief that their disclosure was in the public interest and may request evidence to that extent. An employer who has been taken to an Employment Tribunal because of such a claim would do well to assess what evidence is likely to be presented by the employee and work on ways of countering it.
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