On 25 June 2013, S.43B(1) of the Employment Rights Act 1996 was amended so that protection for whistleblowing would only apply where a qualifying disclosure was made “in the public interest”.  The addition of the words “in the public interest” was designed to reverse the effect of the EAT’s decision in Parkins v Sodexho Ltd [2002] IRLR 109, that breaches of a worker's own contract of employment could qualify for whistleblower protection.

In Chesterton Global Ltd v Nurmohamed, the EAT had to decide whether Mr Nurmohamed (N), who had been dismissed after disclosing information about the alleged manipulation of profit and loss figures, which were used to calculate the sales commission paid to over 100 managers, including him personally, and which he also alleged were being manipulated to the benefit of the shareholders, had made a disclosure which he reasonably believed was “in the public interest”.

An employment tribunal found that N had been automatically unfairly dismissed on grounds that he had made a protected disclosure. The tribunal concluded that: (i) the disclosures were made in the belief of N at the time that it was in the interest of over 100 senior managers; (ii) that is a sufficient group of the public to amount to being a matter in the public interest; (iii) the belief was reasonable, because the over-inflation of the costs set against the office budgets would have decreased profits and potentially reduced bonuses for all the managers; and (iv) while N was principally concerned about his own situation, he did have his colleagues in mind. 

The EAT upheld the tribunal’s decision, rejecting the employer’s appeal that the disclosure was not in the public interest. N’s belief that the disclosure was in the public interest was objectively reasonable. In addition, while N was primarily concerned with his own position, the tribunal had found that he did have the other managers in mind, which meant that a section of the public would be affected and that the public interest test was satisfied. This decision shows that where a disclosure does affect the whistleblower personally, but also impacts on a number of others, then having a personal interest does not automatically preclude there being a public interest overall. Within this context the EAT have set the ‘public interest’ test at a relatively low level.

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