Whistle while you work – the employment law protection for whistleblowers

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Posted in:HR and Employment|May 5, 2015 | Join the mailing list

The whistleblowing legislation (Public Interest Disclosure Act 1998 – “PIDA”) was introduced to safeguard workers who make a “protected disclosure”, which is a disclosure about one of a number of types of wrongdoing, including a failure to comply with a
legal obligation.

Because the whistleblowing worker may be highlighting their employer’s wrongdoing, PIDA provides whistleblowers with protection from suffering any detriment from their employer as a result of their protected disclosure, providing the whistleblower complies
with various requirements when making the disclosure. If the whistleblower is dismissed for making a protected disclosure, then that dismissal is automatically unfair and the usual rule about needing to have a certain length of service before being able to
bring an unfair dismissal claim does not apply.   

In 2001, the Employment Appeal Tribunal (“EAT”) held in the case of Parkins v Sodexho that Mr Parkins should be afforded protection under PIDA, as he had made a disclosure about an alleged breach of his employment contract. Consequently, regardless of his
length of service (which was below the level usually required to bring an unfair dismissal claim), Mr Parkins’ resulting dismissal was judged to be automatically unfair. Mr Parkins had made a disclosure about a breach of his own employment contract and that
was a disclosure about a failure to comply with a legal obligation and was enough for the whistleblowing protection to apply.

In 2013 however, an amendment was made to the whistleblowing legislation, which meant that in future in order for a disclosure to be protected, the whistleblower would need to have a reasonable belief that in making the disclosure, they were acting in the
public interest.

This so called “public interest test” came into play in the recent case of Chesterton Global v Nurmohamed.

According to the judgment in this case, the whistleblower had alleged that his employer was overstating its costs and so wrongly driving down the bonuses of him and 100 of his senior manager colleagues, and the question arose as to whether this was a protected
disclosure. The Employment Tribunal decided that the whistleblower reasonably believed that the disclosure was in the interest of the 100 senior managers and also decided that the group of 100 senior managers was a “sufficient group of the public” for this
to be “a matter of public interest”.

The employer appealed the decision to the EAT, arguing that the group of 100 senior managers was not a sufficient group of the public and that the content of the disclosure itself was not of “real public interest”.

The appeal was dismissed by the EAT however, which stated that the public interest test was introduced to “do no more than prevent a worker from relying upon a breach of his own contract of employment where the breach is of a personal nature and there are
no wider public interest implications.” The EAT said that the question was not whether the disclosure itself was actually of public interest, but whether the whistleblower had a reasonable belief that in making the disclosure they were acting in the public

This decision potentially leaves the door open to other claimants, seeking to claim their disclosure about a breach of their employment contract was protected if they reasonably believed that in making the disclosure, they were acting in the interest of
a group of their colleagues. The question remains, how large does the group of colleagues need to be in order for it to be reasonable to consider it to be part of the “public”.

With stringent rules governing the making of protected disclosures, it’s important that as a worker you seek pragmatic legal advice when considering making one, so that you know whether you will be acting in accordance with the legislation and therefore
will be protected. Similarly, from an employers’ perspective, if you receive a disclosure from a worker about alleged wrongdoing, you need to think carefully about how to react to the disclosure and again taking legal advice is always worthwhile.

For more information about any of the above or for practical commercial advice on this or any other aspect of employment law, please contact Nigel Crebbin of the Berg Employment Team on 0161 833 9211 or email him at

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(The information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Berg or any of its partners or employees. Professional legal
advice should be obtained before taking, or refraining from taking, any action as a result of this article.)

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