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First toe in the water of ‘ In The Public Interest’

First toe in the water of ‘ In The Public Interest’

Chestertons v  Nurmohammed

By Daphne Romney QC

In order to qualify as a protected disclosure, a disclosure must be a qualifying disclosure, namely that it must fall within the categories listed in section ERA 1996 43B(1) as inserted by the Public Interest Disclosure Act 1998, and now re-amended by the Enterprise and regulatory reform Act 2013. Various Parliamentarians have had a go at defining this clearly and have failed.

 

Before 1998, there had been two attempts to introduce a measure to afford protection and encouragement to whistleblowers. The first Bill in 1995 was inspired by a number of preventable scandals and disasters, including

 

  • The Herald of Free Enterprise, a ferry that sank off Zeebrugge with 193 dead. The crew had fallen into the habit of leaving the bow doors open;
  •  The Piper Alpha oil platform explosion which left 167 dead., This was caused by a breach of a procedures designed to keep dangerous operations distant from personnel areas;
  • The collapse of BCCI as a result of massive fraud;
  • The systemic misdiagnosis of bone tumour cases at Birmingham’s Royal Orthopaedic Hospital and
  • The Lyme Bay canoeing disaster caused by failings by the owners and lack of enforcing standards.

 

The proposer, Dr Tony Wright MP, referred to insiders prevented from speaking out “when they find examples of fraud, abuse, illegality, danger or misconduct" but the Bill got nowhere.

 

Don Touhig MP proposed a second bill in 1995. This had two readings before the Commons and received a rare and unanimous endorsement at second reading. The then Conservative Government, however, was not persuaded of the need for legislation and Mr Touhig’s Bill did not leave the Commons.

 

The third Bill followed the New Labour manifesto in 1997. It was said “to give a clear signal to people in places of work up and down the country that if they suspect wrongdoing, the law will stand by them provided they raise the matter in a responsible and reasonable way. Where a worker is aware of fraud, a price-fixing cartel, the sexual abuse of a child in a home or a danger to health, safety, or the environment, or some other malpractice, this Bill provides welcome and much needed guidance.” (Second Reading, House of Lords, 11 May 1998 vol. 589 cc888-904, §890)]

 

The emphasis of the Bill, as with the previous Bills, was therefore firmly placed on preventing the preventable, whether criminal acts, breaches of legal obligations, breaches of health and safety and cover-ups. The clue was in the title The Public Interest Disclosure Act and also in the wording which followed:

An Act to protect individuals who make certain disclosures of information in the public interest; to allow such individuals to bring action in respect of victimisation; and for connected purposes

The words “public interest” however did not appear anywhere else in the Act and were never defined.

 

The looseness of the wording of s.43B(1) (b) led to an unexpected development, The section provided:

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject

Clearly it was envisaged that the obligation of the person in question was someone other than the whistleblower. However, following the EAT decision (on a preliminary point) in Parkins v Sodexho [2002] IRLR 109]  it was accepted that a whistleblower could complain about a breach of an obligation owed to him or her, for example a breach of the implied term of trust and confidence or the failure to make a contractual payment. This led to considerable scepticism and to the perception that employees were taking advantage of the wording which in turn led to hostility towards such claims under the sub-section, particularly where unfair dismissal claims could not be brought given the lack of qualifying employment.

 

As a result, s.17 of the Enterprise and Regulatory Reform Act 2013 provided:

Disclosures not protected unless believed to be made in the public interest

In section 43B of the Employment Rights Act 1996 (disclosures qualifying for protection), in subsection (1), after “in the reasonable belief of the worker making the disclosure,” insert “is made in the public interest and….”.

There was still no definition of the words “public interest”. The test appeared to be a subjective one. Norman Lamb M.P. assured the House of Commons that

“The clause will make it clear that, when the individual is raising their concern at work, or otherwise, under the terms of the legislation, they must reasonably believe that they are making their concern known as a matter of public interest. ………”

 

Lawyers (including the present writer) expressed concern about the failure to spell out how the whistleblower's reasonable belief was to be judged and why the legislature had ignored the suggestion made by Public Concern At Work that the ERA/PIDA would be better amended by adding to 43B(B) the subsection

‘(2) In section 43B of the Employment Rights Act 1996 (disclosures qualifying for protection), in subsection (1)(b), after “any legal obligation to which that person is subject,”, insert “other than a private contractual obligation which is owed solely to that worker.”.’.  [emphasis added]

However, during the debates Mr Lamb claimed that:

“…there are also likely to be instances where a worker should be able to rely on breaches of his own contract where those engage wider public interest issues. In other words, in a worker’s complaint about a breach of their contract, the breach in itself might have wider public interest implications.” 

He also emphasised that purpose of the change was simply to reverse the “opportunistic” use of s.43B(1) for breaches of personal obligations which did not impinge on the public interest.

 

The EAT (Supperstone J, sitting alone) considered these issues in the case of Chestertons v Nurmohammed UKEAT/0355/14/DM. The employee was an estate agent working in the employer’s Mayfair branch. A new commission system was introduced which the employee considered was to the detriment of the sales staff because of the method of calculation. He believed that the effect was that accounts were being manipulated so that the pay of sales staff was being sacrificed in favour of shareholders’ dividends. He raised the matter with his manager and was ultimately dismissed. The Employment Tribunal held that he had been unfairly and automatically unfairly dismissed.

 

The first question was whether an issue affecting the employee and another 100 staff could be said to be in the public interest at all. It was accepted that the employee could not complain simply that his own pay was affected. Supperstone J held that “in the public interest” did not mean the entirety of the public. There was nothing in the Act to suggest that there had to be some common characteristic between the group affected by the matter disclosed. He went on (@ paragraph 38)

Whilst recognising that the person the Respondent was most concerned about was himself, the Tribunal was satisfied that he did have the other office managers in mind. He referred to the central London area and suggested to Ms Farley that she should be looking at other central London office accounts (paragraph 151). He believed that the First Appellant, a well-known firm of estate agents, was deliberately misstating £2-3million of actual costs and liabilities throughout the entire office and department network. All this led the Tribunal to conclude that a section of the public would be affected and the public interest test was satisfied.

 

He also rejected the employer’s (rather unattractive) submission that although disclosure would be in public interest in the case of a public company, the same was not true of a disclosure affecting a private company.

 

In any event, the EAT held that whether the disclosure was indeed in the public interest was not what the Act, as amended, required. Instead the correct test was “whether the worker making the disclosure has a reasonable belief that the disclosure is made in the public interest” (@ paragraph 25)

 

How is that reasonableness to be judged? Supperstone J took the view that the concept of a reasonable belief had already been defined in s.43(1).  A belief can be reasonable even if it is wrong – Darnton v University of Surrey[2003] ICR 615. The employee must have a genuine and reasonable belief in the substance of the disclosure, even though it may be wrong in fact or law. In Babula v Waltham Forest B.C[2007] IRLR 346 . Wall LJ pointed out that the section required that the disclosure “tended to show” one of the maters required by s.43B(1) not that it “shows”.  The test for determining genuine belief is subjective whereas the test for determining reasonable belief is objective.

 

The only people affected by the alleged manipulation were the 100 or so managers whose pay arrangements would be affected; that constituted a sufficient grouping. The judgment does not make it clear what the minimum number of employees would have be in order to qualify as satisfying the public interest test, so that lawyers advising would be again reduced to the mantra “each case is fact specific”.   Some may also be frustrated that the public interest means what the whistleblower reasonably thinks that it means without any guidance within the Act. However, the decision is consistent with the previous decisions of Babula and Darnton.  The aim of the Act is to encourage employees to highlight workplace wrongs. Given that the courts have held that an employee need not have an in depth knowledge of the law, it is consistent that an employee should not need an in depth knowledge of what constitutes the public interest. Unfortunately, it leaves both employers and employees in a difficult position and there is a distinction between a reasonable belief in a set of facts and a reasonable belief in a nebulous concept of in the public interest. This is where statutory guidance would have been very helpful.

 

The Court has yet to hear a claim where an employee can complain of a breach of his or her own contract in the public interest.  It will be interesting to see where Tribunals draw the line between an “opportunistic” claim and what justifiably constitutes the employee’s reasonable view of the “public interest” claim.

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