REWARD INSIGHT
Public interest, performance, and redundancy
Nicola Mullineux, senior employment specialist for Peninsula, reviews the decision in three cases
Chesterton Global Ltd (t/a Chestertons) v Nurmohamed Since the law changed in 2013, in order for whistleblowers to be protected under the legislation they have to have a reasonable belief that the disclosure they are making is made in the public interest. The Court of Appeal has heard the long- running case on whether a disclosure was made ‘in the public interest’. The claimant worked as a director in charge of the sales department of the Mayfair office. In January 2013, a new commission structure was introduced. The claimant contested this structure as he thought it would negatively affect the amount of commission he would receive. He adopted the new structure in February 2013 with some special arrangements. After a meeting with the area director in August 2013, the claimant made a disclosure that there were accounting and reporting discrepancies in the profit and loss figures for his office, as compared with corporate figures. This would result in certain commission payments for the
claimant and around 100 other senior managers being unfairly miscalculated. The claimant raised the accounting discrepancies again in September and October 2013. The claimant was dismissed and he claimed automatic unfair dismissal on the grounds he was dismissed because he made protected disclosures. The Employment Tribunal (ET) was the first tribunal to consider the meaning of ‘in the public interest’. The ET judged that public interest could not mean something which was of interest to the entirety of the public as this would seldom arise. Instead, they decided that it was enough that only a section of the public would be directly affected, rather than simply the individual concerned. In this case, there were two sections of the public affected by the disclosures: the 100 senior managers and anyone who came to rely on the accounts. Therefore, this was sufficient for the matter to be in the public interest. The employer appealed the ET decision to the Employment Appeal Tribunal (EAT).
The EAT dismissed the appeal as they agreed that a relatively small group could be sufficient to satisfy the public interest test, based on the facts of the case. The EAT decision was appealed to the Court of Appeal, the highest court, to consider this issue. The court concluded that where the disclosure relates to a breach of the worker’s own contract of employment, there can be facts which make it reasonable to decide the disclosure is made in the personal interest of the worker and in the public interest. Although they were hesitant to set out any hard rules for when a disclosure will be in the public interest, the court did give guidance on a number of factors to be taken in to account. These include: the numbers of the group affected by the disclosure; the nature of the interests affected; the nature of the wrongdoing disclosed; and the identity of the wrongdoer. Providing further guidance, the court also commented that although the worker has to have a genuine and reasonable belief that the disclosure is
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| Professional in Payroll, Pensions and Reward | September 2017 | Issue 33
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