6th August 2015

This should be of interest, dear public

Whistleblowing (a whistle-stop history of)

The Employment Rights Act 1996 (ERA) protects workers from being subjected to a detriment or dismissed because they have made a “qualifying protected disclosure” (blown the whistle) about:

• The commission of a criminal offence;
• A failure to comply with a legal obligation;
• A miscarriages of justice;
• An individuals’ health and safety being endangered;
• Environmental damage;
• Concealment of any of the above.

The protection under the ERA comes from the Public Interest Disclosure Act 1998 (PIDA), which states in its introduction that it is “An Act to protect individuals who make certain disclosures of information in the public interest….”.

Before 2013, whilst the intention of PIDA was clearly to deal with disclosures that were in the “public interest”, the ERA made no reference to that requirement. Many would, quite rightly, argue that the function and application of PIDA in Employment Tribunals had become distorted as workers’ disclosures about personal grievances, which interested very few people bar themselves, were repeatedly held to qualify for protection under the whistleblowing legislation.

This legal loophole was tightened in 2013 by an amendment to the ERA, so that in order to qualify for the protection under the ERA, the whistle-blower must reasonably believe that their disclosure was “in the public interest”.

The Employment Appeal Tribunal (EAT) has recently given an indication of what they think the public is interested in, in the case of Chestertons v Nurmohamed.

The case
The Claimant had made various disclosures about the Respondent’s financial practices which he believed negatively affected his income and that of over 100 colleagues. He alleged that his disclosures showed that the Respondent was in breach of a legal obligation, and that that was something the public would be interested in. The EAT agreed and upheld the Employment Tribunal’s decision that in this case a section of the public would be affected by the Respondent’s practices and that the public interest test was therefore satisfied.

The EAT usefully went on to add that an individual’s personal contractual dispute will not usually be protected, and that whether or not disputes regarding a small number of workers will be protected will depend on the circumstances.

A comment
This case will hopefully serve as a useful tool in disposing of opportunistic whistleblowing claims where the Claimants seek to argue that their personal battle is of an interest to a public audience. It is also a reminder that an issue need not be worthy of a Panorama special to be protected. Employers are of course advised to treat any complaint seriously and ensure that employees are encouraged to raise concerns, of whatever nature, when they arise.

If you would like any further advice on the issues covered in this article, or if you would like assistance in preparing or reviewing your own whistleblowing policy, please do not hesitate to contact one of the team on 0161 437 0013 or info@lawbydesign.co.uk.