Whistleblowing: Court of Appeal considers the public interest test

Dismissing a whistleblower: is the employers belief that the disclosure is not protected relevant?

In the recent case of Chesterton Global Ltd and another v Nurmohamed and another, the Court of Appeal considered the extent of the public interest test in the context of whistleblowing claims. This case confirms that the concept of public interest should be interpreted widely, but still leaves flexibility for the courts and tribunals to decide if a disclosure meets the test on a case by case basis.

Background

Mr Nurmohamed was a senior manager of a branch of Chestertons, an estate agency. He was dismissed after asserting that the company was misreporting its finances, which lowered the profit-based commission that he, and around 100 other senior managers, received. Mr Nurmohamed brought a claim against Chestertons for automatic unfair dismissal on grounds of whistleblowing.

In order to be protected against detriment or dismissal under the whistleblowing legislation, a worker must have made a qualifying disclosure. Amongst other things, to be a qualifying disclosure, this disclosure must be, in the reasonable belief of the worker making it, made in the public interest. This public interest test was added to the legislation with the aim of preventing employees using whistleblowing legislation to litigate breaches of their own employment contracts for their own ends.

Both the tribunal and the EAT accepted that Mr Nurmohamed reasonably believed his disclosure was in the public interest because, although he was mostly motivated by concern about his own commission, he had the other 100 senior managers in mind when making the disclosure. This was considered to affect a section of the public and therefore sufficient to meet the public interest test.

Chesterton appealed to the Court of Appeal.

Decision

The Court of Appeal upheld the tribunal’s decision, finding that the disclosure met the public interest test.

The Court clarified that the correct test to be applied was whether Mr Nurmohamed subjectively believed at the time that the disclosure was in the public interest and, if so, whether that belief was objectively reasonable. The issue is not whether the disclosure was in fact in the public interest, but whether in the eyes of the whistleblower it was and whether this was a reasonable interpretation.

Although the Court did not provide any definitive guidelines on the interpretation of “public interest”, they did approve four key factors for assessing the reasonableness of a worker’s belief that a disclosure was in the public interest. These factors are:

  1. The numbers in the group whose interests are served by the disclosure;
  2. The nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed (disclosure of wrongdoing directly affecting an important interest is most likely to be in the public interest);
  3. The nature of the wrongdoing disclosed (disclosure of deliberate wrongdoing is more likely to be in the public interest than disclosure of inadvertent wrongdoing); and
  4. The identity of the alleged wrongdoer (the larger the wrongdoer i.e. in terms of staff, suppliers, clients etc, the more likely a disclosure about its activities will engage the public interest).

In this case, the Court found that the disclosure met the public interest test due to the number of employees affected, the fact that it related to an alleged deliberate wrongdoing and that Chesterton was a substantial and prominent business in the London property market. The Court identified that the misreporting of internal accounts went against the argument that the disclosure was in the public interest, but noted that these accounts nevertheless fed into statutory accounts which are publically available.

The Court also stated that belief in the public interest need not be the primary motive for making a disclosure, so it did not matter that Mr Nurmohamed had other personal motivations (i.e. his own commission). However, the Court did take care to reiterate that the whistleblowing legislation was not designed to be used for private workplace disputes.

Comment

This decision confirms that the public interest test can be satisfied by an alleged breach that affects a significant number of employees within the respondent employer. The ‘public’ element does not require affected persons external to the employer in question. Whilst this broad interpretation of the test is helpful to whistleblowers, the decision still leaves considerable freedom to the courts and tribunals to consider each case on its facts.

 

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