The Employment Appeal Tribunal (EAT) recently ruled in the case of Parsons v Airplus International Ltd (2017), that disclosures made which arise purely out of self-interest do not satisfy the “public interest” test and our therefore not protected.
The “Public Interest” Test: Background
Back in 2013, section 43B of the Employment Rights Act (ERA) 1996 was amended by section 17 of the Enterprise and Regulatory Reform Act 2013, which meant that disclosure are only protected where the employee has a reasonable belief that the disclosure is in the public interest. The amendment was made with the intention of preventing employees from exploiting the whistleblowing legislation with respect to breaches to their employment contract, but which have no wider public interest repurcussions. Nonetheless, this begged the question as to what was meant by the term, “in the public interest.” This question was addressed in the Chesterton Global Ltd and another v Nurmohamed (2017) test case by the Court of Appeal in June 2017. In that case, the Court of Appeal ruled that the main determinant is whether the employee reasonably believes that the disclosure is in the public interest, and not whether disclosure is objectively in the public interest. It held that the “exercise requires…tribunal[s] to recognise, as in the case of any other reasonableness review, that there may be more than one reasonable view as to whether a particular disclosure was in the public interest; and that is perhaps particularly so given that that question is of its nature so broad-textured.“
Parsons v Airplus International Ltd (2017)
One of the implications of the Chesteton ruling were that whilst a disclosure may relate to a breach of the employees own contract of employment, a tribunal may still rule that it was nevertheless in the public interest (and therefore represented a protected disclosure) should it find that the employee held a reasonable belief that the disclosure was in the public interest.
In the case of Parsons v Airplus International Ltd (2017), however, the EAT ruled that whilst the disclosure related to a breach of the employees own contract of employment, on this occasion they took the view, as did the Employment Tribunal at first instance, that the employee did not hold a reasonable belief that the disclosure was in the public interest. It therefore held that as the disclosure was made purely for reasons of self-interest, then the disclosure was not protected. The employee in this case was employed as a legal and compliance officer, and the EAT determined on the facts of the case that the reason why the disclosure was made was that the employee was concerned purely about her own personal liability as regards issues as to whether her then employer was in breach of its legal and compliance obligations.
The Wider Implications Of The Ruling In The Parsons Case
The ruling in the Parson’s case highlights that Tribunals will not always find that there was a reasonable belief on the part of the employee that the disclosure made was in the public interest, where the disclosure related to a breach of the employees own contract of employment. It also reaffirms the position following the Chesterton case, that disclosures motivated purely out of self interest without any reasonable belief that they were also in the public interest, are not protected. The lesson of all this for employers is that it is absolutely imperative that they fully minute and document their discussions with employees following any disclosures made, and their reasons for any dismissal. By doing that, the employer maximises their chances of successfully defending it themselves in relation to any whistleblowing claim made to the employment tribunal.