Director in whistleblowing case was unfairly dismissed

The Court of Appeal has ruled that a director was unfairly dismissed after raising concerns about company practices in a whistleblowing case.

The director worked for a firm of estate agents. He alleged that the employer was manipulating the accounts to reduce the level of commission payable. He claimed that it affected 100 senior managers’ earnings, including his own, and that the manipulation involved misstating between £2m and £3m.

The Employment Tribunal considered whether the director had made the disclosure in the reasonable belief that it was in the public interest, making it a qualifying disclosure within the Employment Rights Act 1996.

It found that the employee had reasonably believed that it was in the interests of the 100 senior managers, which constituted a sufficient group of the public for it to be a matter in the public interest.

The employer argued that the tribunal had erred in holding that a disclosure which was in the private interest of the worker making it was in the public interest simply because it served the private interests of other workers as well.

The case went to the Court of Appeal, which upheld the tribunal’s decision. It held that the phrase “in the public interest” was not a clearly defined term. In assessing the case, the tribunal had accepted that there could be more than one reasonable view as to whether a disclosure was in the public interest.

The necessary belief was simply that the disclosure was in the public interest; the reasons why the worker believed that to be so were not of the essence.

While the worker had to have a genuine belief that the disclosure was in the public interest, that did not have to be the predominant motive in making it. There was not much value in providing a general gloss on the phrase “”in the public interest””.

Parliament had chosen not to define it and the intention must have been to leave it to tribunals to apply it as a matter of educated impression. The firm’s appeal was dismissed.

Please contact Jackie Cuneen if you would like more information about the issues raised in this article or any aspect of employment law.