The claimant brought a whistleblowing claim after the respondent changed the method by which it paid commission to its employees from a system based on revenue to one calculated on profits. He argued that 100 other managers were also affected and that the complaint was in the ‘public interest’ based on the number of people affected. The tribunal accepted that a group of 100 people was sufficient to meet the definition of ‘the public’ and this could mean a section of the public rather than the general public.

The question for the Court of Appeal was whether a disclosure in the private interests of the whistleblower could be considered of public interest merely because it also served the private interests of other workers. The Court rejected the contention that to meet the public interest test, individuals outside of the workplace must also be affected. The words ‘in the public interest’ in the legislation were introduced (in GB) to do nothing more than prevent a worker from relying upon a breach of his own employment contract where the breach is of a personal nature and no wider public interest implications exist. In this case, the breach affected other people as well as the claimant and the employer’s appeal was dismissed.

Practical Lessons

To amount to a disclosure in the ‘public interest’, the number of individuals affected still remains an important consideration. The EWCA in this decision confirmed that other factors such as the nature of interests affected, the nature of wrongdoing and the identity of the alleged wrongdoer may also be relevant.

Based on the facts of the case at hand, what was particularly relevant was that the employee argued that the employer had been deliberately misstating actual costs and liabilities throughout the whole business. Such accusations are much more likely to implicate the public interest as opposed to inadvertent actions even if the same amount of individuals are ultimately affected. Deciding what is in the public interest will never be a purely mathematical question based on persons affected but it stands to reason that a larger pool of affected individuals could tip the balance where other factors are finely balanced.
http://www.bailii.org/ew/cases/EWCA/Civ/2017/979.html

NOTE: The words “in the public interest” were added to whistleblowing laws in GB by the Enterprise and Regulatory Reform Act 2013 in order to reverse the effect of Parkins v Sodexho Ltd [2002] IRLR 109, which concluded whistleblowing protections extended to employees who raised concerns that they reasonably believed were a breach of their own contracts of employment. The 'Public Interest Test' provisions to be introduced into Northern Ireland under the Employment Act (NI) 2016 have NOT been commenced at the time of writing:
https://www.legislation.gov.uk/nia/2016/15/crossheading/protected-disclosures/enacted

It must be noted that the corresponding NI regulations have not been issued and thus the Sodexho decision remains the relevant authority in NI. The Court of Appeal here forged something of a ‘middle ground’ between the positions yet the principles of Sodexho have not been completely rejected judicially and ‘public interest’ will not be narrowly construed in either jurisdiction.