It is an attractive option for an individual to bring him or herself within the UK whistleblowing laws. Not only does a worker have a right not to be subjected to any detriment for making a disclosure falling within these laws, any dismissal for doing so will be automatically unfair. Further the two year length of service requirement does not apply and any compensation awarded is not subject to the statutory cap (currently the lower of 12 months’ salary or £78,335).
Back in June 2013, changes were made to the requirements a worker’s disclosure must satisfy to gain protection under UK whistleblowing laws, including a new requirement that a worker must reasonably believe that their disclosure was “in the public interest”. This new public interest requirement was introduced to close an existing statutory loophole whereby a worker had been able to allege that his disclosure was protected under whistleblowing legislation, even though it related to his own personal employment contract. However, as we commented at the time (see here), this new test created its own uncertainties given that the worker only needed a reasonable belief that their disclosure was in the public interest. And what did in the public interest mean?
When will a worker’s disclosure satisfy the “public interest” test?
The EAT has now provided some guidance on this new public interest requirement. The case in question involved a director who alleged to senior managers that the company’s cost figures were being overstated to the benefit of shareholders and which in turn impacted on the calculation of his commission and that of around 100 other managers. He claimed that his subsequent dismissal was because he had made a protected disclosure and consequently was automatically unfairly dismissed. The employer argued that a disclosure made in the interest of 100 senior managers did not amount to a disclosure made in the public interest as this was not a sufficiently large group and also that the disclosure per se was not in the public interest.
The EAT did not agree with the employer. It concluded that a disclosure made in the interest of 100 senior managers amounted to a disclosure made in the public interest even though the individual’s main concern in making the disclosure was his own commission payment. The EAT pointed out that the public interest test introduced in June 2013 was intended to do no more than prevent a worker from relying upon a breach of his own contract of employment where the breach was personal in nature and there were no wider public interest implications. It also reiterated that it was the individual’s reasonable belief that the disclosure was in the public interest which was relevant and there was no requirement that the disclosure was per se in the public interest.
What do employers need to do?
- Ensure you have a comprehensive whistleblowing policy in place and familiarise staff and managers with your policy to ensure that disclosures are dealt with appropriately. The Government has recently issued guidance and a Code of Practice for employers which we shall be happy to discuss with you further (see here).
- Keep track of any comments or grievances raised. Remember, concerns raised in separate correspondence may not amount to a qualifying disclosure when viewed in isolation, but may well do so when viewed together (see here).
- Consider carefully whether or not an individual’s concerns may be a qualifying disclosure within the UK whistleblowing laws. Essentially the information disclosed must in the reasonable belief of the worker show that one of six different situations has occurred, is occurring or is likely to occur including a criminal offence, breach of any legal obligation and danger to the health and safety of any individual and the worker reasonably believes the disclosure is in the public interest. The EAT decision above suggests that provided an individual reasonably believes that the disclosure is in the interests of others (albeit they are simply his fellow employees) and not just himself then the public interest test introduced in 2013 is likely to be satisfied.
- Ensure any qualifying disclosure is dealt with carefully under your whistleblowing procedure. Where a disclosure is protected a worker has a statutory right not to be subjected to a detriment and any resulting dismissal will be automatically unfair. To bring an unfair dismissal claim, an employee does not need to satisfy the two years’ service requirement and the compensation that may be awarded if successful is not subject to the statutory cap.
(Chesterton Global Ltd and anor v Nurmohamed (EAT))