Whistleblowing: a landmark ruling on the “public interest” test
Fri 18 Aug 2017
In the case of Chesterton Global Ltd (t/a Chestertons) and another v Nurmohamed and another, the Court of Appeal considered whether a disclosure that is made in the private interest, which also affects the private interests of multiple individuals, meets the ‘public interest’ test for the purposes of whistleblowing legislation.
Mr Nurmohamed, the Claimant, was employed at Chestertons as Director of its Mayfair office. Mr Nurmohamed made various disclosures alleging that Chestertons had manipulated its financial accounts in order to depress the level of commission payable to staff. This manipulation allegedly affected 100 senior managers, including Mr Nurmohamed. Mr Nurmohamed was dismissed in October 2013 and subsequently brought a claim in the Employment Tribunal claiming that he had suffered detriments and been dismissed because of the “protected disclosures” he had made pursuant to Section 43B Employment Rights Act 1996.
At first instance, Mr Nurmohamed was successful in his claim. It was held that the disclosure he made was protected under Section 43B, on the basis that he had “reasonably believed” at the time of making the disclosure that it was in the interests of 100 senior managers, which was a sufficient group of the public to amount to being a matter “in the public interest”. Chestertons appealed the decision on the basis that the Employment Tribunal had misinterpreted the “public interest test”.
The Employment Appeal Tribunal dismissed the appeal and held that the decisive question to be determined was whether the disclosure could reasonably be believed to be in the public interest, rather than whether or not it was in fact in the public interest. Chesterton appealed again, this time questioning the meaning of the words “in the public interest” in Section 43B.
The Court of Appeal dismissed the appeal, finding that Mr Nurmohamed’s disclosures were capable of being “in the public interest”. The Court said that the disclosure made by Mr Nurmohamed was of deliberate wrongdoing by Chestertons which took the form of mis-statements in the company accounts. Even though these misstatements affected the private interest of individuals at the company, the disclosure was “unquestionably” in the public interest.
This case is good news for whistleblowers. It has widened the scope for protected disclosures and confirmed that personal and public interests are not mutually exclusive. It has not, however, opened the floodgates for “private workplace disputes” affecting other employees to be brought as whistleblowing claims. The Court of Appeal made it very clear that each case will turn on its facts and that factors such as the number of workers affected, the nature and extent of interests affected, the nature of wrongdoing disclosed and the identity of the alleged wrongdoer, should all be considered when determining the key question, which is whether the worker reasonably believed that the disclosure was in the public interest.
This case also acts as a useful reminder for employers to put in place robust internal whistleblowing policies and procedures so that any whistleblowing disclosures are brought to the attention of the appropriate people at the business and dealt with in a fair and proper manner.