Whistleblowing: What counts as Public Interest?

A manager complains about “the manipulation of his employer’s accounts”, to the benefit of shareholders, and the fact that it has left him financially worse off. He is one of 100 office managers in the company similarly affected. He is dismissed and he claims his dismissal is automatically unfair because he had made a protected disclosure, specifically that there had been a breach of a legal obligation.

As a result of a 2013 amendment to the Employment Rights Act, it is now necessary for a whistleblower to have held a reasonable belief at the time that he was making the disclosure in the public interest.

Let’s take a step back and look at the facts of this particular dispute. They are all about the accounts of a private company, not a PLC or a public sector body. The issues were hardly newsworthy. The wrongdoing arguably involved no harm to a material number of people, nor was it likely to have stirred up any sense of popular indignation. At best, apart from obvious and understandable self interest on the part of the whistleblower, he would have had in mind no wider audience than the other 100 office managers similarly affected. Does this count as public interest?

Evidently so. According to the Employment Appeal Tribunal in Chesterton Global Ltd v Nurmohamed, the 100 other office managers were a sufficient section of the public to satisfy the public interest test. The suggestion that this was more analogous to a complaint about holiday pay, which would be of interest to other employees but no one outside the company, rather than to a complaint about an issue that struck at wider public policy such as unlawful discrimination, was not accepted.

At first sight, this may suggest that the 2013 amendment has proved not to be worth the paper it was written on. But the argument to the contrary is that it was only ever intended to stop an aspiring whistleblower from relying upon a breach of his own contract of a personal nature with no wider implications.

There may of course be little chance of a flood of whistleblowing claims, given the obstacles (Early Conciliation, fees) now in place to deter tribunal applications generally. But this is arguably a major reduction in the scope for an employer to play the “no public interest” card when faced with a whistleblowing claim.


Do you wish to blow the whistle on a matter of public interest? Or are you faced with one of your employees claiming to have done so? If you need advice, contact David Cooper or Andrew Cox.