In 2013 the whistleblowing laws were amended to prevent workers bringing such claims where the complaint only related to a breach of a personal term of a worker's contract without any conceivable public interest element. This followed a decision in 2002 which was often criticised as not reflecting the purpose and intent of the legislation. It was sometimes used in such cases by departing employees who argued that a term of their contract had been breached to try and negotiate a higher severance payment. In other cases it was used to bring such claims when otherwise they would not have had sufficient service to do so. By its very nature the raising of a whistleblowing complaint requires employers to follow specific procedures when investigating such issues.
It is therefore essential for employers who may be investigating a complaint by an existing worker or for an Employment Tribunal considering a claim to identify whether the whistleblowing legislation is triggered.
In the first appeal decision since the law was amended in 2013 the Employment Appeal Tribunal has looked at the issue of "public interest" (Chesterton Global Ltd and Anor v Nurmohamed). In that case, a director and employee of a large estate agents complained to senior management that the company's profit and loss figures were deliberately misleading with a view to benefiting the shareholders. The employee alleged the inaccurate figures personally affected his commission payments. He also claimed that around 100 fellow employees suffered a similar loss. The employee was later dismissed and the Employment Tribunal upheld his claim that he had been automatically unfairly dismissed for making a public interest disclosure. The employer appealed, claiming that there was no "public interest" and that the employee was mainly concerned for his private interests - the impact on his own commission. The EAT looked at the facts of the case and found that, although the employee's own contract had arguably been breached, the matter complained about also affected a sufficiently large group to provide a public interest element. They added that the test is whether the worker making the disclosure had a reasonable belief that it was in the public interest. There does not have to be an actual public interest element, as long as the worker believes on an objective basis that there is. It also did not matter that the case involved a private company rather than a public limited company.
The decision is a salutary reminder that all employers (private sector and public sector) should take care before dismissing workers who have made complaints which might affect others. Employers should not ignore a complaint on the basis that they do not perceive that there is a public interest element. Rather they should look at all the facts and test whether, on an objective basis ,the worker has reasonable grounds for believing there is a public interest element. If the worker does then the public interest test can still be satisfied even if the basis of the public interest disclosure is wrong and/or there was no actual public interest in the disclosure being made.