Under the Employment Rights Act 1996, the definition of a qualifying disclosure for whistleblowing purposes includes that "in the reasonable belief of the worker making the disclosure, [the disclosure] is made in the public interest..."
Mr Nurmoahmed was, along with about 100 colleagues, paid commission at work. He believed his employer was exaggerating expenses to depress profits and thus reduce commission payments, in total by about £2-3m. That was an allegation capable of being a protected disclosure, if he fell within the provision that he had to reasonably believe it was in the public interest. The question: was a disclosure about a commission structure affecting only a small(ish) group of salesman something which could reasonably be believed to be in the 'public interest'? The Court of Appeal held yes, stating the mere fact something is in the worker's private interests does not prevent it also being in the public interest. It will be heavily fact-dependent, but the Court adopted four criteria proposed by James Laddie QC as a useful starting point (para 34). But the Court sounded a note of caution (para 36) that tribuals should be slow to find that matters affecting just people within a workforce is a 'public interest' disclosure, albeit often the larger the workforce, the more often there will be other factors present which might be enough to push a disclosure over into the public interest. On a separate point, the Court of Appeal made it clear that it was acceptable, as often happens, for the employee to rationalise the grounds for his belief after the event. All that matters is that his (subjective) belief about the disclosure being in the public ininterest was (objectively) reasonable.
With thanks to Daniel Barnett’s employment law bulletin for providing this update.
Back to Contents
Court victory for same-sex survivor pension rights 14 July 2017
The Supreme Court has unanimously allowed Mr Walker’s appeal and makes a declaration that his husband is entitled on his death to a spouse’s pension, provided they remain married.
Background to the appeal John Walker, the appellant in these proceedings worked for the respondent, Innospec Ltd, from 1980 until his retirement in 2003. Throughout that time he made regular contributions to the firm’s occupational pension scheme. Mr Walker is gay and has lived with his male partner since 1993. They entered into a civil partnership on 23 January 2006 and are now married. In 2006 Mr Walker asked Innospec to confirm that, in the event of his death, they would pay the spouse’s pension, which the scheme provides for, to his civil partner. Innospec refused, because his service predated 5 December 2005, the date that civil partnerships were introduced in the UK, and any discriminatory treatment is therefore permitted under paragraph 18 of Schedule 9 to the Equality Act 2010. This provides that it is lawful to discriminate against an employee who is in a civil partnership or same-sex marriage by preventing or restricting them from having access to a benefit, facility or service the right to which accrued before 5 December 2005 or which is payable in respect of periods of service before that date. If Mr Walker was married to a woman (or indeed if he married a woman in the future) she would be entitled on his death to a “spouse’s pension” of about £45,700 per annum. As things stand at present, Mr Walker’s husband will be entitled to a pension of about £1,000 per annum (the statutory guaranteed minimum). Mr Walker’s claim for discrimination was upheld by the Employment Tribunal, but Innospec’s appeal to the Employment Appeals Tribunal was allowed, and Mr Walker’s appeal to the Court of Appeal was dismissed. He now appeals to the Supreme Court. Judgement The Supreme Court unanimously allows Mr Walker’s appeal and makes a declaration that (i) paragraph 18 of Schedule 9 to the Equality Act 2010 is incompatible with EU law and must be disapplied and (ii) Mr Walker’s husband is entitled on his death to a spouse’s pension. Mr Walker’s husband, provided he does not predecease him, and that they remain married at the time of Mr Walker’s death, is therefore entitled under the Framework Directive to a spouse’s pension calculated on the basis of all the years of Mr Walker’s service with Innospec.
TUC comment The TUC has hailed this pensions victory for same-sex couples; General Secretary Frances O’Grady said:
The Chartered Institute of Payroll Professionals
Policy News Journal
cipp.org.uk
Page 80 of 516
Made with FlippingBook - Online magazine maker