When is a disclosure in the public interest?

The EAT has recently considered the first case involving the new public interest test in relation to whistleblowing.

In 2013 the law changed so that anyone alleging whistleblowing must have had a reasonable belief that the allegation he or she made involved an issue of public interest.

The EAT considered this issue in Chesterton Global Ltd (t/a Chestertons) v Nurmohamed.  Mr Nurmohamed was a director in the Mayfair branch of Chestertons, a firm of estate agents.  He made a series of disclosures to Chestertons concerning the company accounts.  He believed that they were deliberately misstating £2-3 million of actual costs, which would have the effect of significantly reducing the bonus pot for Mr Nurmohamed and around 100 other managers.

The Employment Tribunal considered the public interest test.  It decided that a disclosure would not be in the public interest if it related only to the individual, but need not relate to the entirety of the public. A disclosure could be in the public interest if it related to a section of the public. In this case, whilst the statement in the accounts undoubtedly would have affected Mr Nurmohamed, it would also have affected around 100 other managers.  As such the Tribunal held the disclosure to have been in the public interest.

Chestertons appealed and the Employment Appeal Tribunal "(EAT)" upheld the Tribunal’s decision.

The EAT emphasised that the key question is whether the worker has a reasonable belief that the disclosure is made in the public interest, rather than if the disclosure in fact involves an issue of public interest.  The EAT stated that, provided the individual’s belief was reasonable, it is irrelevant that it was wrong.

In this case the EAT was satisfied that Mr Nurmohamed believed that his disclosure affected other managers and not just himself. 

The EAT emphasised that the public interest test had been introduced so that a worker could not rely on a breach of his or her contract of employment alone in order to bring a whistleblowing claim. 

Impact on employers

This case suggests that the public interest test may be interpreted fairly widely.  There is a risk that as long as the disclosure affects others to some extent it may be found to be in the public interest.

Employers should also be aware that if an employee brings a grievance which raises an issue which affects other employees, and not just that employee, the grievance might later be able to form the basis for a whistleblowing claim.

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