Whistleblowing: Public Interest Test

Can a disclosure which is in the private interest of the worker become in the ‘public interest’?

The Court of Appeal in Chesterton Global Ltd v Nurmohamed considered for the first time the meaning of the “public interest” test.

The legal background

In order to be protected against detriment or dismissal under the whistleblowing legislation, a worker must have made a qualifying disclosure. This is any disclosure of information, which, in the reasonable belief of the worker making it, is made in the public interest and tends to show that one or more of the six specified types of wrongdoing has taken place, is taking place or is likely to take place.

The public interest test was introduced into the whistleblowing legislation in 2013 to prevent workers from using the whistleblowing protection law to bring claims where they make disclosures about a breach of their own employment contract, even though there was no “public interest” in the disclosure.

Facts

Mr Nurmohamed was employed as a senior manager at a branch of Chestertons, the estate agent.  He, along with about 100 colleagues, was paid commission.  He believed that his employer was deliberately supplying inaccurate figures to its accountant, overstating actual costs and liabilities to reduce commission payments, in total by about £2-3 million.  He raised concerns to two directors.

He was dismissed and brought a claim for dismissal and suffering a detriment as a result of making a protected disclosure.

Both the employment tribunal and the Employment Appeal Tribunal found in Mr Nurmohamed’s favour.  Chestertons appealed.  The question: was a disclosure about a commission structure affecting only a small group of salesmen something which could reasonably be believed to be in the public interest?

Decision

The Court of the Appeal held yes, stating that the mere fact something is in the worker’s private interests does not prevent it also being in the public interest.  The Court noted that the issue is not whether the tribunal thinks that the disclosure was in the public interest, but whether the whistleblower thought so, and whether the belief was objectively reasonable at the time.  Belief in the public interest need not be the predominant motive for making the disclosure, or even form part of the worker’s motivation.

It concluded that the statutory test of what is in the “public interest” does not lend itself to absolute rules and the tribunal should take into account a number of factors.  The Court adopted four criteria as a useful starting point:

  • The numbers in the group whose interest the disclosure served. Where the disclosure is in the context of a private workplace dispute, the larger the number of persons whose interests are engaged by the breach of the employment contract, the more likely there will be other features which will engage the public interest.
  • The nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed. Disclosure of wrongdoing affecting a very important interest is more likely to be in the public interest than a disclosure of trivial wrongdoing.
  • The nature of the wrongdoing disclosed. Disclosure of deliberate wrongdoing is more likely to be in the public interest than the disclosure of inadvertent wrongdoing affecting the same number of people.
  • The identity of the alleged wrongdoer. The larger or more prominent the wrongdoer (in terms of the size of its relevant community, i.e. staff, clients and suppliers), the more obviously should a disclosure about its activities engage the public interest.

In this case, it was said to be a deliberate and large scale wrong-doing which fed into statutory accounts and it was done by a substantial and prominent business in the London property market.

Comment

The Court has not given employees a blank cheque.  The factors identified by the Court of Appeal mean that complaints about a worker’s individual contract is unlikely to qualify as a whistleblowing complaint unless the complaint is about something significant.  However, employers should not assume that a complaint from an employee about a term of their contract will not fall within the remit of a whistleblowing complaint.

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