When is whistleblowing in the public interest? 'Chesterton Global Ltd. & Another v Nurmohamed' leaves this question open

Effective whistleblowing is an essential aspect of good governance and it is therefore crucial that the rhetoric of protection matches what happens in practice. Of the changes introduced to the Public Interest Disclosure Act 1998 (PIDA) by the Enterprise and Regulatory Reform Act 2013 (ERRA), the introduction of the public interest test is arguably the most controversial. The ERRA inserts ‘is made in the public interest’ after ‘in the reasonable belief of the worker making the disclosure’ into section 43B of the Employment Rights Act 1996 (ERA), the aim of which was to reassert the original aim of the PIDA by closing the loophole in Parkins v Sodexho Ltd. (Parkins v Sodexho) where the EAT decided that section 43B(1)(b) ‘that a person has failed, is failing or is likely to fail to comply with any legal obligation’ could encompass breaches of a personal contract of employment. Although it is not in question that, in the wake of a series of disasters in the 1980s and 1990s, public interest was at the heart of the socio-political impetus for the PIDA, it is suggested that the devil here is very much in the detail. Public Concern at Work (PCAW), expressed concerns prior to the introduction of the ERRA that introducing a public interest test would ‘create confusion around the protection afforded to whistleblowers as they would have an additional legal test to meet’. Lewis makes a strong case for the removal of the public interest test, arguing that: 'a belief can only be reasonable if there are some grounds for it, but the requirement to get confirmation from others might penalize those whistleblowers who choose to act alone to safeguard themselves and others'. This article discusses the implications of the introduction of the public interest test in the light of the first Employment Appeal Tribunal (EAT) decision on the test in Chesterton.