Whistleblowing – Court of Appeal addresses ‘Public Interest’

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The Court of Appeal has handed down its decision in the case of Chesterton Global Limited (t/a Chestertons) and another v Nurmohamed - the first time it has addressed the question of what it means to blow the whistle ‘in the public interest’ - finding that a disclosure relating to the breach of the employment terms of a hundred or so senior managers was made ‘in the public interest’.

Legal background

For a disclosure to amount to a ‘qualifying disclosure’ for the purposes of whistleblowing protection under the Employment Rights Act 1996 (ERA), the worker making it must have a reasonable belief that it is in the public interest. This requirement was imposed as an amendment to the ERA whistleblowing provisions in June 2013 in an attempt to override the impact of the EAT’s decision in Parkins v Sodexho, (which had held that a protected disclosure could relate to the breach of an employee’s own contract of employment). The insertion of the public interest requirement was intended to stop workers from seeking to use whistleblowing protection to bring claims relating purely to their own contractual terms.

In Chestertons, the Court of Appeal (CA), considered whether a disclosure which related to the private interests of the worker making it could in fact be judged to be ‘in the public interest’ if it also served the interests of his colleagues. In its judgment, the CA held that, yes, in principal, it could.

However, the CA has also made it clear that in determining the question of public interest much will depend on the facts of the specific case.

Case facts

Mr Nurmohamed (N), an estate agent, was due commission under the terms of Chestertons’ commission scheme, as were 100 or so other senior managers and sales staff. Commission was calculated based on the Chestertons’ company profits. N alleged that the company was exaggerating expenses in an attempt to depress profits and so reduce the amount of money payable under its commission scheme. N was later dismissed and brought a number of claims, including one of automatic unfair dismissal for whistleblowing. N claimed that his allegations about the deliberate manipulation of accounts in order to reduce commission payments were made in the public interest, and so amounted to protected disclosures.

Employment tribunal and EAT findings

The employment tribunal (ET) agreed with N, finding that he had a reasonable belief that his disclosure was made in the public interest. On appeal, the EAT upheld the ET’s decision. It found that although N clearly had a personal motivation for making the allegations in question, the ET had been entitled to find that he had also had his colleagues’ interests in mind at the time of his disclosure, and that the number of colleagues potentially affected was sufficient for the disclosure to be ‘in the public interest’.

Chestertons appealed, arguing that a disclosure limited to the same personal interests of a group of employees within the same company was insufficient to engage the public interest.

The Court of Appeal decision

In dismissing the appeal, the CA rejected Chestertons’ argument that for a disclosure to be in the public interest, those affected by it must extend beyond an employer’s own workforce.

The CA also confirmed that there could be no absolute rules for determining what is, and what is not, ‘in the public interest’. However, the CA identified a number of relevant factors for ETs to consider when deciding whether, in a particular case, a worker held a genuine belief that their disclosure was in the public interest, and whether such a belief was reasonable. These factors included:

  • the numbers in the group affected by the disclosure – as a rule of thumb, the bigger the number of people affected the more ‘likely’ it will be that such a disclosure will satisfy the public interest requirement. However, the CA was keen to emphasise that the number of people involved was not the determinative factor.
  • The nature of the interest affected by the wrongdoing disclosed – for example, a serious health and safety risk is more likely to be in the public interest than a more ‘trivial’ issue affecting the same number of people.
  • The form of the wrongdoing disclosed – the disclosure of a deliberate act or cover up would be more likely to be in the public interest than the disclosure of an inadvertent oversight.
  • The identity of the alleged wrongdoer – the larger or more prominent an alleged wrongdoer, the more likely it will be that the public interest is engaged.

Comment

This case establishes that the public interest requirement for whistleblowing protection can potentially be satisfied even where a disclosure relates to the personal interests of a relatively small number of workers within the same organisation. However, it does clarify that all the circumstances of a particular disclosure need to be taken into consideration in determining the issue. It is important for employers to remember that the bar for a worker gaining whistleblowing protection still remains fairly low, as all that is required is for that worker to have a ‘genuine belief’ that their disclosure was in the public interest, and that it was reasonable for them to have held such a belief. It is not relevant if this genuinely held belief ultimately turns out to be mistaken.

EEF Support and assistance

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Principal Legal Adviser

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