Holiday pay claims to be limited to two years
In November, we reported the decision in Bear Scotland Limited v Fulton, where the EAT confirmed that regularly worked, mandatory overtime should be included in holiday pay…
Published 12 May 2015
In this case the EAT considered the meaning of the words "in the public interest" which were added into the whistleblowing legislation by the Enterprise and Regulatory Reform Act 2013, in order to exclude complaints about breaches of a worker's own contract of employment from whistleblower protection.
Mr Nurmohamed was a senior manager in the Mayfair office of Chestertons, the estate agents. Following changes to the company's commission structure, he made three allegedly protected disclosures; two to the Area Director for the Central London area and one to the Director of Human Resources. He stated that he believed Chestertons was deliberately misstating £2-3million of actual costs and liabilities which benefitted shareholders, making the company appear more profitable, and resulting in lower commission for 100 senior managers, including himself. Mr Nurmohamed was dismissed and brought various claims against Chestertons. An employment tribunal concluded that he had been automatically unfairly dismissed, and that Chestertons had subjected him to detriments on the ground that he had made protected disclosures. Specifically the tribunal found that the disclosures were made in the reasonable belief that they were in the interest of 100 senior managers, and that is a sufficient group of the public to amount to be a matter in the public interest. Chestertons appealed to the EAT on two grounds: first, that the tribunal had made a mistake in making this finding, as this was not a sufficient group of the public; and second that it was for the tribunal to determine objectively whether or not the disclosures were of real public interest, which the tribunal failed to do so.
The Employment Appeal Tribunal (EAT) rejected the appeal. It found that the public interest test was satisfied. The EAT noted that the sole purpose of the public interest amendment was to reverse the effect of the case of Parkins v Sodexho Ltd, so that a worker cannot rely solely on a breach of their own contract of employment, which has no wider public interest implications. In this case, although the whistleblower was mainly concerned with his own position, the tribunal was satisfied that he had in mind the other senior managers, whose income would also be affected by alleged accounting irregularities. The EAT stated that it is not necessary to show that a disclosure was of interest to the public as a whole, as it is inevitable that only a section of the public will be directly affected by any given disclosure. Secondly, a worker need only demonstrate that they reasonably believed that the disclosure was in the public interest. The EAT decided that the question is not whether the disclosure is actually in the public interest, but whether the worker making the disclosure has a reasonable belief that the disclosure is made in the public interest. Here the whistleblower did.
Employers may be disappointed that the EAT has set the public interest hurdle at a relatively low level. However, the 2013 amendment remains a helpful one for employers, as having an element of public interest in the test does prevent employees from relying on a personal breach of contract to bring a whistleblowing claim.