Jane does love this time of year – spring is in the air, the sun is shining and the politicians (well at least some of them) are talking about prosperity and it’s nearly bonus time. Jane knows how she’s spending it already – bedroom furniture. Jane’s going to spend her lunch break surfing the internet to get some ideas.
Oops….she’s ordered it. Jane couldn’t resist. The bonus is a sure thing anyway. She’s in recruitment and has been getting bonuses every year and always hits her targets. After all, this furniture might not be available if she waits.
Two days later
OK – furniture order cancelled! No bonus. Jane’s devastated. First year this has happened and she was sure she’d hit all her targets. Seems the company has changed the targets. Jane told her manager that she thinks they’ve manipulated the accounts to reduce the bonuses and that it’s not right and affects Jane and her legal recruitment colleagues who all work so hard for the company.
Jane was sacked on the spot.
…later at Jane’s house
Jane is mad. She’s going for unfair dismissal. What else can she do she wonders…
…Oooh, Jane has a thought. Maybe she is one of those ‘whistleblowers’ she’s read about. Jane told her manager that she thought the company had manipulated the accounts and then he sacked her.
Jane searches ‘whistle-blower’ in Google…
Jane’s not sure that she is a whistle-blower anymore. Jane was complaining about her own contract of employment and the Government got wise to this issue a couple of years ago and closed that loophole. Jane discovers that complaining about your own contract of employment is not “in the public interest” but isn’t quite sure what that means.
Aha – after searching ’whistle-blower in the public interest’ Jane finds an interesting case on the issue. Apparently the Employment Appeals Tribunal (EAT) has just considered the meaning of the words “in the public interest” for the first time. And the worker who brought the claims in that case was complaining about his own contract of employment like Jane did. Great Jane thinks, let’s have a look at this a bit more…
So, Mr Nurmohamed was an estate agent and complained to his senior managers that he believed the Company (Chestertons) had deliberately manipulated office accounts to reduce bonus and commission payments. Jane did that.
Apparently this impacted on payments to around 100 managers including him. Jane had told her manager that she thought the company’s actions had affected not just her but all the legal recruitment consultants in her team – Jane could tell by the way Sandra, who sat across from her in the office, was tapping on her keyboard when Jane was collecting her things that she’d been told there was no bonus for her either.
Ah, yes Jane finds that she does need to make sure that other people besides her were affected, she can see that the EAT went on about a disclosure relating to a small number of people maybe being in the public interest. If all the other legal recruitment consultants in Jane’s team are affected, or if Jane at least thinks that there might be others who’ve been affected (which she does), the EAT seem to be saying that it would satisfy the public interest test. As this EAT decision is binding on the Employment Tribunal where Jane would bring her claim it looks like great news for Jane after all.
Jane is a whistle-blower and it looks like her disclosure was in the public interest.
Just how easy is it to un-cancel a furniture order Jane wonders?
Unfortunately Jane’s story is not unique.
Disgruntled workers will always look to consider what action they can take if they believe a company is in breach of their contract of employment and/or if they believe they are a whistle-blower.
Whilst companies may have breathed a sigh of relief when the Government added the words “in the public interest” into the existing whistleblowing legislation in 2013 the Government’s failure to actually exclude a breach of a worker’s own contract of employment from constituting a qualifying disclosure left it open for workers, including Jane (and of course Mr Nurmohamed), to claim that a disclosure about a breach of their own contract was in the public interest.
In Mr Nurmohamed’s case the EAT held that the fundamental question that has to be asked under the revised whistleblowing legislation is not whether a disclosure was in the public interest but rather, whether the individual making the disclosure, had a reasonable belief that the disclosure was in the public interest. Whilst the EAT said an individual contractual dispute would not normally satisfy the public interest test a disclosure relating to a relatively small group of people may do so.
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 Chesterton Global Ltd (t/a Chestertons) and another v Nurmohamed UKEAT/0335/1
[3[ Mr Nurmohamed brought claims of unfair dismissal and detriment on the grounds that he had made protected disclosures