In Whose Interest is it Anyway?

The Public Interest Disclosure Act (PIDA) 1998 was introduced to provide protection to workers who disclosed wrongdoing within the workplace. In its original form, oddly given the Act’s title, the disclosure of wrongdoing did not have to be in the public interest. This led to the situation where a worker could gain protection under PIDA by alleging their employer had simply breached a term of their employment contract. This was rectified in July 2013, and it is now necessary for the worker to have a reasonable belief that any disclosure made is in the public interest. However, the term “public interest” is not defined within the legislation.

In Chesterton Global Limited & Anor v Nurmohamed the Employment Appeal Tribunal (EAT) considered what “in the public interest” may mean. Mr Nurmohamed alleged to Chesterton Global that their profit and loss accounts were being manipulated to the benefit of shareholders. He went on to allege that these inaccurate figures were being used to calculate his and over 100 other senior managers’ commission payments to their detriment. Mr Nurmohamed was dismissed shortly after making these disclosures and claimed that the sole or principal reason for his dismissal was the disclosures, thereby rendering his dismissal automatically unfair.

Chesterton Global argued that the disclosures made by Mr Nurmohamed were not in the public interest on the basis that 100 senior managers did not form a sufficient group of the public for the disclosure to be in the public interest. The EAT disagreed with this, stating that it is possible for a relatively small group of individuals to satisfy the public interest test. They went on to point out that it is not necessary for the disclosure to be actually in the public interest – it was only necessary for the worker to have a reasonable belief that the disclosure was in the public interest at the time. In this case, whilst it was clear that the person Mr Nurmohamed was most concerned about was himself, the fact that he raised concerns that 100 senior managers were also potentially losing out showed that he had them in mind at that time. There was, therefore, a belief that a section of the public, namely the 100 senior managers, was going to be affected.

The test for whether a disclosure has been made “in the public interest” is, therefore, not particularly onerous. One explanation for this may be that the 2013 amendment referred to above was only intended to prevent a worker from relying upon a breach of his own contract and nothing more. It remains to be seen just how small a group of employees will be regarded as a section of the public for a disclosure made in their interests to be counted as “in the public interest”. Is 100 at the low end or not?

Director of Legal Services

James Tamm

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