Welcome back, after a blustery start to the week we thought it appropriate that this week’s case is about whistleblowing. This case could be summarised by the words of fictional detective Father Brown, “one can sometimes do good by being the right person in the wrong place” – Bonus points if you spot the link!
Since the updated Public Interest Disclosure Act came into force in June 2013, any whistle blower making a disclosure must have reasonable belief that the disclosure is in the public interest. This may sound straightforward, but prior to this amendment employees could bring claims under this act even though the only member of the public interested in their disclosure was the employee themself.
In light of this information today’s question is; How many people have to be affected by an employee’s disclosure for it to be in the public interest?
Mr Nurmohamed, the Claimant, was a manager at estate agents Chesterton Global Ltd, the Respondent. In 2013 the Respondent introduced a new bonus and commission plan which the Claimant believed would significantly reduce his income.
Whilst comparing accounting records it came to the Claimant’s attention that the company had manipulated the figures. He believed there was a discrepancy of between £2-3 million in costs which had been misappropriated to give shareholders a higher dividend and managers (including himself) a smaller commission bonus.
He made protected disclosures to both his line manager and HR manager but was dismissed by the Respondent shortly after. The Claimant brought claims of unfair dismissal and victimisation discrimination due to the alleged protected disclosures he made.
Upon reviewing the evidence the Tribunal ruled that the Claimant had made protected disclosures to the Respondent because, despite his main motivation for highlighting the discrepancy being the size of his own bonus, the Claimant also had the interests of the 100 other managers in mind when making his disclosure.
The Tribunal also ruled that all disclosures are only of interest to sections of the public and that no disclosure is in the interest of the entire public. Therefore, a disclosure made in the interest of 100 managers was a sufficient amount of people to qualify as public interest.
The Respondent appealed this decision believing that the disclosure was done purely for the Claimant’s personal gain and that 100 people affected by the disclosure was not enough to make it a public interest. The EAT rejected the appeal agreeing with the Tribunal that 100 people was a sufficient amount of people to make a disclosure a public interest.
To answer this week’s question
A sizeable number of people must be affected by a disclosure for it to be in the public interest. This is a breakthrough piece of case law defining the term as at least 100 people, prior to 2013 one person was sufficient. It is also worth noting that had the Respondent been a public limited company it would have been an even greater public interest as the company would have been on the stock market.
An additional take-away point that employers need to be wary of in all whistleblowing cases is that:
The two year length of service requirement does not apply so any employee can bring a claim.
A dismissal in relation to a disclosure is automatically unfair.
Any compensation award will not be limited by a statutory cap.
Therefore it is important to tread carefully when any employee blows the whistle.