Whistleblowing and ‘the public interest’

Chestertons v Nurmohamed

This case tested the meaning of “in the public interest” in relation to whistleblowing and contrasts with the Newman case below.

Mr Nurmohamed was a director of the estate agency, Chestertons. He claimed to have been unfairly dismissed after making protected disclosures relating to the company’s financial matters. He believed that Chestertons was deliberately mis-stating costs and liabilities, and that that affected the earnings of 100 senior managers, including himself.

The tribunal held that he had been unfairly dismissed and automatically unfairly dismissed, and had been subjected to detriments on the grounds that he had made protected disclosures. A question for the Employment Appeal Tribunal (EAT) was whether the disclosures satisfied the “public interest” requirement, triggering protection. Did disclosures which were in the interest of 100 managers do the trick?

The EAT held that the public interest test comes down to the discloser’s belief. In this case, Mr Nurmohamed reasonably believed that the disclosure was in the public interest. A relatively small group may be sufficient to satisfy the public interest test, the EAT said.

It’s something to bear in mind. Don’t assume that just because an issue may not be of significance to people outside your organisation that its relevance to a particular group won’t lead to a protected disclosure.

Latest Whistleblowing Blag Fails

There is something about a really good ‘try on’ isn’t there?

Particularly if it falls flat on its face!

It’s the sort of thing where you have to give points for effort & ingenuity, but also – and most all – for the bare faced cheek of what someone has attempted to pull off.

The whistleblowing legislation has been prime target for this sort of thing for years. Recent amendments were necessary to prevent employees bringing detriment and dismissal claims that arose from complaints they had made about alleged breaches of their own contracts of employment.

Does that seem harsh? It shouldn’t, because the purpose of the whistleblowing legislation is to protect those who make disclosures that are in the public interest: not disclosures for their own interests!

In Newman v Riverside Building Supplies the Claimant complained to his employer that his manager had called him a ‘tosser’. Allegedly the employer did nothing about his complaint, and so he left and brought claims for automatic unfair dismissal and unlawful detriment.

Now, in what sense is complaining that someone was rude to you, a matter of public interest? Absolutely none, of course! And this is exactly what the Employment Tribunal found. Bravo!

Better luck next time.

Whistleblowing

The Employment Rights Act 1996 protects those who make disclosures that tend to show failure to comply with a legal obligation. Protection is against any detriment or a decision to dismiss.

To qualify, a disclosure must contain factual information (not just opinion), which tends to show one of the things listed in Section 43B (1). But what happens when an employee makes several disclosures, to different people, which individually do not tend to show a failure to comply with a legal obligation, but which when taken together do?

The Employment Appeal Tribunal in Norbrook Laboratories (GB) Ltd v Shaw decided that emails sent separately by a manager to the Health & Safety Officer and the HR Department of his employer, regarding driving in icy conditions, when read together did amount to a protected disclosure. The earlier communications could be taken to be ’embedded’ in those that followed, because they had been referred to.

This case is a useful reminder to employers that whistleblower protection will often engage in subtle ways. Employers and their advisors must be careful to identify protected disclosures and ensure they act to protect whistleblowers and avoid adverse liabilities and publicity.