Recently the Government decreed that whistleblowing complaints have to satisfy yet another technical test in that the protected disclosure must be of a nature to be 'in the public interest' before 'liftoff'. Most of us have been feeling in the dark as to what this could mean but finally the EAT has lobbed us a few pearls of wisdom in the case of Chestertons v Nurmohamed Appeal No. UKEAT/0335/14/DM
The crux of the matter determined by the EAT can be found in para. 36 'The sole purpose of the amendment to section 43B(1) of the 1996 Act by section 17 of the 2013 Act was to reverse the effect of Parkins v Sodexho Ltd'.
The appeal before Mr Justice Supperstone concerned the meaning of the words “in the public interest” inserted into section 43B(1) of the Employment Rights Act 1996 by section17 of the Enterprise and Regulatory Reform Act 2013.
The nature of the protected disclosure involved a large group of staff rather than the general public.
The Respondent was Director of the Mayfair office of the First Appellant, a well-known firm of estate agents. He made three alleged protected disclosures, two to the Area Director for the Central London area and one to the Second Appellant, the First Appellant’s Director of Human Relations. The Respondent stated that he believed the First Appellant was deliberately misstating £2-3million of actual costs and liabilities through the entire office and department network which affected the earnings of 100 senior managers, including himself.
The Employment Tribunal concluded that the disclosures were made in the reasonable belief of the Respondent that they were in the interest of 100 senior managers, and that that is a sufficient group of the public to amount to be a matter in the public interest. The decision of the Tribunal was that the Respondent was unfairly dismissed and automatically unfairly dismissed by the First Appellant and that the First and Second Appellants subjected him to detriments on the grounds that he had made protected disclosures.
The Employment Appeal Tribunal rejected both grounds of appeal:
(i) that the Tribunal erred on concluding that disclosures made in the interest of the 100 senior managers was to a sufficient group of the public to amount to being a matter in the public interest; and
(ii) that it was for the Tribunal to determine objectively whether or not the disclosures were of real public interest, and this the Tribunal failed to do.
The EAT concluded that: The question for consideration under section 43B(1) of the 1996 Act is not whether the disclosure per se is in the public interest but whether the worker making the disclosure has a reasonable belief that the disclosure is made in the public interest; (2) the sole purpose of the amendment to section 43B(1) by section 17 of the 2013 Act was to reverse the effect of Parkins v Sodexho Ltd. The words “in the public interest” were introduced to do no more than prevent a worker from relying upon a breach of his own contract of employment where the breach is of a personal nature and there are no wider public interest implications.
34. I accept Ms Mayhew’s submission that applying the Babula approach to section 43B(1) as amended, the public interest test can be satisfied where the basis of the public interest disclosure is wrong and/or there was no public interest in the disclosure being made provided that the worker’s belief that the disclosure was made in the public interest was objectively reasonable.
35. In my view the Tribunal properly asked itself the question whether the Respondent made the disclosures in the reasonable belief that they were in the public interest. The Tribunal proceeded to answer that question at paragraphs 146-151 of the decision (see paragraph 14 above). The Tribunal concluded (at paragraph 151) that the disclosures were made in the belief of the Respondent at the time that it was in the interests of the 100 senior managers and that that belief was reasonable. There is now no challenge to the finding that the Respondent had a reasonable belief that he was making protected disclosures (see paragraph 6 above).
36. The objective of the protected disclosure provisions is to protect employees from unfair treatment for reasonably raising in a responsible way genuine concerns about wrongdoing in the workplace (see ALM Medical Services Ltd v Bladon at paragraph 16 above). It is clear from the parliamentary materials to which reference can be made pursuant to Pepper (Inspector of Taxes) v Hart  AC 593 that the sole purpose of the amendment to section 43B(1) of the 1996 Act by section 17 of the 2013 Act was to reverse the effect of Parkins v Sodexho Ltd. The words “in the public interest” were introduced to do no more than prevent a worker from relying upon a breach of his own contract of employment where the breach is of a personal nature and there are no wider public interest implications. As the Minister observed: “the clause in no way takes away rights from those who seek to blow the whistle on matters of genuine public interest” (see paragraph 19 above).