Case update (1): Whistleblowing – What is in the ‘public interest’?

What do we already know?

We updated you in our April 2015 Newsletter Case update (3): Whistleblowing – what is in the ‘public interest’? on the EAT’s decision in the case of Chestertons Global Limited v Mr M Nurmohamed.

This case dealt with when a whistleblowing complaint can be held to be in the ‘public interest’ and therefore protected by law.  Unhelpfully for employers the EAT decided, in particular, that even when an employee’s primary motivation in making a disclosure involves a dispute about his or her own contract of employment, that disclosure may still be in the ‘public interest’ so long as other employees are affected. Also, that it is enough for the worker to believe that the disclosure was in the public interest as long as this belief was objectively reasonable

What’s new?

The above case has now been heard by the Court of Appeal which, unfortunately for employers, has upheld the EAT’s decision.

Summary:  When is a worker’s disclosure made in the public interest, so as to attract the protection of the law on whistleblowing?

This depends, says the Court of Appeal in Chesterton Global Ltd (t/a Chestertons) and another v Nurmohamed and another (available here) on all the circumstances of the case, including the:

• number of affected employees: An issue affecting only one or two employees is less likely to be protected than one which affects an entire workforce;
• nature of the interest affected: If the interest is important, it may be in the public interest even if the group affected is small;
• nature of the wrongdoing: A deliberate wrongdoing is more likely to attract protection than an inadvertent one; and
• identity of the wrongdoer: The larger and/or more significant the wrongdoer, the more likely its activities engage public interest. When the employee reasonably believes that their disclosure is in the public interest.

Facts: Mr Nurmohamed was a director at the Mayfair branch of Chestertons Estate Agents. In August and September 2013, Mr Nurmohamed made three disclosures in which he alleged that Chestertons was manipulating its accounts to the benefit of shareholders. The effect of this manipulation was that he, and approximately 100 other managers, would be disadvantaged through receiving lower commission payments.

Mr Nurmohamed was subsequently dismissed and he brought Tribunal claims. One of his claims was that he had been automatically and unfairly dismissed for making the above protected disclosures.

The Tribunal upheld Mr Nurmohamed’s claim. It found the fact that a substantial number of other managers were affected by his allegations of employer-impropriety to be significant. In relation to what is the “public interest”, it was satisfied that the 2013 amendments cannot have been intended to mean something which is of interest to the whole of the public since it is inevitable that any disclosure will most often only directly affect a section of the public. With this in mind, in the view of the Tribunal, the 100 or so senior managers represented a sufficient group of the public to support a public interest. Furthermore, Mr Nurmohamed was found to have had this extended group in mind when raising his allegations, not merely his own interests. Accordingly, the Tribunal found that the disclosures were made in the (reasonable) belief of Mr Nurmohamed to be in the public interest (and not just himself) and upheld Mr Nurmohamed’s claims.

The EAT upheld the Tribunal’s decision and Mr Nurmohamed’s claim. Importantly, the EAT found that the test for the purposes of the 2013 amendments to the whistleblowing legislation, is a question of belief not fact. A disclosure need not actually be in the public interest as long as the whistleblower reasonably believes it is. It also found that, to satisfy the test, the “public” can be a relatively small group, which can include the whistleblower, and those who work at the same employer.

The employer appealed to the Court of Appeal.

The Court of Appeal held that to decide whether a whistleblowing disclosure is in the “public interest” (or it is reasonable to believe this to be the case) a court has to look to the substance of the disclosure made and all the circumstances of the case. It is not possible to have a blanket rule that suggests where a disclosure is only about one individual (such as a personal grievance) that it has no public interest. Similarly, where the disclosure affects others (for example, miscalculation of holiday pay in a workforce) it may still have no public interest.  The Court also gave the guidance as set out in the above ‘Summary‘ which is to be used as an approach to considering whether a disclosure is in the public interest.

Implications: Unfortunately this decision does not provide much certainty. This leaves whistleblowing claims as very fact sensitive: in order for a Tribunal to decide whether a worker has blown the whistle in the public interest, it will have to decide first whether the worker genuinely believed the disclosure was in the public interest at the time they blew the whistle, and secondly, whether objectively the substance of what was disclosed could be said to be in the public interest (and therefore the worker’s belief was reasonable).

Overall and unhelpfully for employers, it remains relatively easy for a worker to demonstrate that they have a reasonable belief that their disclosure is in the public interest in all but the most directly personal of issues.