THE ALCHEMIST ABOUT TOWN

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Whistleblowing - Landmark cases

In Cherserton v Nurmohamed, Mr Nurmohamed made disclosure about alleged manipulation of the firm's accouts and claimed that, by deliberately overstating costs and liabilities for its London office the firm was reducing managers' commission, including his own.

A tribunal found that he had been automatically unfairly dismissed (when the whistleblowing provisions were amended in 2013, one of the changes was that the disclosure had to be "in the public interest"). In considering whether the public interest test was fulfilled, the Employment Tribunal considered what constitutes 'the public'. It accepted that a group of 100 people sufficed and that 'public' can mean a section of the public rather than the entirety.

Pic from www.darutahqiq.com

Following an appeal by Chestertons, the Employment Appeal Tribunal upheld the tribunal decision and went on to emphasise that it is the worker’s reasonable belief that is important rather than whether the allegation actually does in fact involve an issue of public interest. 

The EAT did not view it as a way to a personal grievance about a private contractual matter because Mr Nurmohamed, although personally affected, believed that the disclosure was important for the whole pool of managers


In Underwood v Wincanton plc. , Underwood brought claims of automatic unfair dismissal and detriment for having made protected disclosures.
The disclosures on which he relied was a letter which complained of unfair allocation of overtime. Wincanton argued that, at most, the letter expressed a collective grievance  about a contractual matter.

The Employment Tribunal struck out the claim finding that a complaint, concerning only a group of workers about terms of their contracts, could not meet the public interest test. Overturning the Employment Tribunal's decision the EAT recognised that the Employment Tribunal's judgment had been given before any real guidance as to the meaning of "public interest" and before its decision in Chesterton Global Ltd v Nurmohamed had been delivered. That case concerned an employee making a disclosure about contractual matters (commission payments) where 100 senior managers were affected. 

The EAT found that provided a section of the public, rather than simply the individual, was concerned, this was sufficient to meet the test and that the dispute between an employer and a group of employees relating to their terms and conditions of employment was capable of being a protected disclosure. The issues of health and safety meant this case from an EAT prospective was within the scope of problem the legislation was intended to address. 

This did require an interpretation of the word “public” to mean a relatively small number of employees. Employers should be aware that, following this case, employees may bring claims on the basis of allegations about their own contracts if there is a health and safety or other public interest dimension to the claim.  If an employee can show that they were dismissed because of a protected disclosure, they do not need to have the usual two years’ service to bring a claim of unfair dismissal, the dismissal will be automatically unfair and there is no cap on the compensation that can be awarded. Employers may also need to consider the drafting of their whistleblowing policies.