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Public Interest Test

A worker or an employee may bring a whistleblowing claim where they have suffered a detriment (including dismissal) because they made a protected disclosure.

s.43A Employment Rights Act 1996 (the Act) sets out that a disclosure will be protected if:

i) it is a disclosure of information;
ii) which is a qualifying disclosure; and
iii) it is made in one of the protected manners.

s.43B of the Act sets out what will amount to a qualifying disclosure:

i) the information must set out the allegation of wrongdoing; and
ii) the worker must have a reasonable belief that the conduct amounts to such wrongdoing; and
iii) if the disclosure was made on or after 25 June 2013, the worker must also hold a reasonable belief that the disclosure is made in the public interest.

“Public interest” is not defined in the statute nor have we been able to draw on other areas of law to clarify its meaning. However, the words “public interest” were introduced to prevent a worker relying on its own contractual relationship with their employer where there were no public interest considerations.

In the recent case of Chesterton Global, Verman v Nurmohamed, we see the first appellate decision on the meaning of “public interest” in s.43B of the Act.

The EAT has held that it is not whether the disclosure per se is in the public interest but whether the worker making the disclosure has a reasonable belief that the disclosure is made in the public interest.

The claimant in this case was a Director in charge of the Sales department of Chestertons estate agents. He bought a claim for unfair dismissal following protected disclosures that he made, that Chestertons was manipulating its figures to his detriment and around 100 other senior managers, partly paid on a commission basis.

His claim of automatically unfair dismissal was upheld by the Employment Tribunal.  The 100 senior managers was a sufficient group of the public to amount to a matter in the public interest. Chestertons appealed. Permission to appeal was granted but the appeal was dismissed.  The Claimant had made the disclosures in the reasonable belief that they were in the public interest and that belief was reasonable. The 100 senior managers were sufficient to constitute a section of the public, which satisfied the public interest test.


Posted in: Employment

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