Those looking to incorporate a limited company this year may wish to take note of two important cases that have broadened what may be considered in the public interest when determining whether a whistleblowing disclosure is protected.
It was back in June 2013 when the government made the legal protection provided to whistleblowers conditional on the worker holding a reasonable belief that their disclosure was in the public interest. Although this was not defined, the intention of the law was to ensure employees couldn’t depend on allegations about breaches of their own employment contracts being given the status of protected whistleblowing procedures.
However, a broad approach has since been taken by two significant Employment Appeal Tribunal (EAT) rulings. One case, Chesterton Global Limited v Nurmohamed 2015, saw Nurmohamed (N) bring a whistleblowing claim alleging that he and around 100 other managers were receiving reduced commission due to his employer fiddling with accounts.
The EAT held that a group of 100 people was sufficient to constitute “the public”, with not all of the public needing to be involved, given that this case concerned everyone affected being in the employ of the same company. The EAT also asserted that what was important was the worker’s reasonable belief, rather than whether the allegation actually did involve a public interest issue.
N’s allegation was not considered by the EAT to be a personal grievance about his own contract, although he was personally affected, he believed that his disclosure was important for the entire team of managers. He therefore thought that his disclosure was a public interest one, which was a reasonable belief.
In another case, Underwood v Wincanton Plc 2015 which involved an alleged protected disclosure taking the form of a written complaint submitted by four drivers that their terms of employment had been breached as a result of the unfair allocation of overtime. It was suggested that reduced overtime had been allocated to drivers who had drawn attention to vehicle safety issues.
According to the EAT, the tribunal was wrong in striking out the whistleblowing claim on the ground that a disclosure could not be in the public interest if it concerned the alleged breaches of contracts of only four employees.
The outcomes of the aforementioned cases mean that until further guidance on the public interest test is provided by the Court of Appeal, there is uncertainty as to how many employees need to be affected before contractual breach allegations can be regarded as being in the public interest. In the meantime, it may be most safely presumed that such claims may be considered to be in the public interest if they affect anyone else at all other than the employee bringing the claim.