The EAT found that the ‘public interest test’ (incorporated into whistleblowing legislation in June 2013) is a question of belief not fact, so a disclosure need not actually be in the public interest as long as the whistleblower reasonably believes it is.
It also found that the ‘public’ can be defined as a relatively small group, can include the whistleblower, and can all work for the same employer.
The case in question concerned a claim brought by a director of estate agents Chestertons Global that accounts were being manipulated to his and a further 100 senior managers’ detriment. Repercussions included substantially reduced commission payments.
An employment tribunal ruled that the 100 managers affected along with the claimant, Mohamed Nurmohamed, constituted a ‘public’.
Chestertons appealed, criticising the tribunal for not considering whether Nurmohamed’s disclosures were in the public interest as a question of fact. But the EAT has now confirmed that the test is not whether the disclosure was actually in the public interest, but whether it was in the reasonable belief of the whistleblower.
Chestertons also argued that 100 senior managers was not a sufficient group to constitute the ‘public’, and the fact they all worked for the company added to this. Again the EAT disagreed.
David von Hagen, a partner in Winckworth Sherwood’s employment team, representing Nurmohamed, said: “This is an important test case on whistleblower protection. The intention of the public interest rule was to prevent individuals bringing whistleblowing claims based only on breaches of their own contracts.
“However, if the public interest test is too tough whistleblowers might be discouraged from bringing claims, particularly if their own interests are involved because they form part of the affected group. The EAT has established a low bar in a sensible and pragmatic decision.”