Who are “the public” for the purposes of “blowing the whistle”?

For many years, it has been unlawful to dismiss an employee or to subject them to any kind of detriment for “blowing the whistle”. The legislation aims to encourage employees who discover wrongdoing to raise concerns with their employers or other bodies without fear of reprisal.

In 2013, the legal test for establishing a successful whistleblowing claim was changed. Individuals no longer needed to show they had acted in “good faith” when raising concerns but they did need to evidence that any disclosures were made in the “public interest”. Until recently, it was not clear exactly what this meant. Did it, for example, mean that the wrongdoing had to effect the country as a whole or a single company, or would a group of workers satisfy the test? Although, inevitably, each case turns on its own facts, two recent decisions by the Employment Appeal Tribunal (EAT) have shed light on what is meant by “public interest”.

In the case of Chesterton Global Ltd v Nurmohamed, it was held that concerns relating to a commission scheme affecting 100 senior managers was sufficient to meet the test, whereas in Underwood  v Wincanton Plc, it was held that a complaint by only four workers was equally in the “public interest”.  This suggests that it is the subject of the disclosure rather than the numbers it affects that is key to determining whether or not it meets the relevant test. The first of these cases is being appealed to the Court of Appeal therefore we will have to wait and see whether the decision is upheld and what, if any, further guidance the Courts will give to employers and employees to better understand the legislation.

If you have any questions about whistleblowing or any aspect of employment law please do not hesitate to call Debbie Sadler on 0118 955 9607.

Published on 09/11/2015

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