Case update (3): Whistleblowing – what is in the ‘public interest’?

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

When the employee reasonably believes that their disclosure is in the public interest says the EAT in Chestertons Global Limited v Mr M Nurmohamed available here.

Background: In July 2013, the whistleblower legislation was changed to require a worker making a disclosure to have a reasonable belief that the disclosure was made in the public interest. The change was primarily aimed at removing whistleblower protection from workers who made disclosures about an employer’s alleged breaches of their own personal contract of employment, where such breaches had no wider public interest.

In the above case the EAT has given the first guidance on the meaning of ‘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.

Implications: This case is useful guidance to employers as to when a worker’s disclosure will satisfy the ‘public interest’ test and therefore is entitled to the protection of whistleblowing legislation.

What employers should note in particular is 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. Therefore even a disclosure related to what is essentially a ‘private’ dispute between the employer and its employees about their contracts of employment can amount to a disclosure in the ‘public interest’.

Employers should also note that the worker must only demonstrate an (objectively) reasonable belief in the disclosure being in the public interest. Therefore even if the worker was wrong about the facts and the Tribunal disagrees that the disclosure was in the public interest, the worker may still be protected if their beliefs in these matters were objectively reasonable.