In June 2017, the Court of Appeal will be hearing the Chesterton Global Ltd appeal which has important ramifications for whistleblowing law.
Whistleblowing: The 2013 Amendment
Back in 2013, s43B of the ERA 1996 was amended by S17 of the Enterprise and Regulatory Reform Act 2013. Following this, an employee can now only make a protected disclosure, so long as they have a reasonable belief that the disclosure is in the public interest.
The reason for the 2013 amendment was to prevent employees from using the whistleblowing legislation in relation to a breach of their own contract of employment, where there are no wider public interest ramifications.
The 2015 EAT Ruling In The Chesterton Global Case
The 2013 amendment begged the question as to what was meant by the term, “in the public interest“. That is, the amendment introduced a public interest test, without actually defining what the public interest was. But, in 2015, the EAT ruled in Chesterton Global Ltd (trading as Chestertons) and anor v Nurmohamed (2015). The EAT held that the main issue is whether the employee themselves genuinely believes that the disclosure is in the public interest. It is not whether disclosure is objectively in the public interest. The repercussions of this were that Tribunals can now take a broad view as to what constitutes public interest disclosure. Employers also need to be very wary when employees raise grievances which effect more than just themselves.
In making its decision in Chesterton, the EAT looked at what the original intention was behind the 2013 amendment. It determined that the public interest test was intended to be met where employees genuinely believe that it constitutes a public interest disclosure. Hence, it is not met when an employee makes the disclosure solely for their own self serving personal interests
The Chesterton Global Ltd Appeal
The Chesterton case has been appealed. Moreover, the case is scheduled to be heard by the Court of Appeal on the 8th June 2017. Accordingly, the outcome of that appeal will have enormous ramifications for whistleblowing law.