Chestertons Global Limited v Mr M Nurmohamed
The Employment Appeal Tribunal (EAT) has this week delivered its first decision on the ‘public interest test’ incorporated into whistleblowing legislation in June 2013.
The EAT found that the test is a question of belief not fact, in that 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, can include the whistleblower, and can all work at the same employer.
David von Hagen, a Partner in Winckworth Sherwood’s Employment team, representing Nurmohamed, said: “This is an important test case on whistleblower protection. The intention of the public interest rule was to prevent individuals bringing whistleblowing claims based only on breaches of their own contracts.
“However, if the public interest test is too tough, whistleblowers might be discouraged from bringing claims, particularly if their own interests are involved because they form part of the affected group. The EAT has established a low bar in a sensible and pragmatic decision.”
The case involved estate agents Chestertons Global Limited and Mr M Nurmohamed, a director in its Mayfair office.
Nurmohamed brought a claim based on Chesterton’s (then Chesterton Humbert’s) accounts being manipulated to the detriment of Nurmohamed and a further 100 senior managers. The misstated accounts, amongst other things, substantially reduced commission payments.
Nurmohamed believed his disclosures were in the public interest and the Employment Tribunal in June 2014 ruled in favour of Nurmohamed, making its decision based on the 100 managers being affected as well as Nurmohamed.
On appeal, Chestertons criticised the Tribunal for not considering whether Mr Nurmohamed’s disclosures were in the public interest as a question of fact. This approach did not find favour with the EAT, who confirmed that the test was not whether the disclosure was actually in the public interest, but whether, in the reasonable belief of the whistle-blower, it was. Nurmohamed believed his disclosures were in the interests of over 100 other senior managers in the company. That belief was sufficient.
Chestertons also argued that 100 senior managers was not a sufficient group to constitute the “public”, and the fact they all worked for Chestertons added to this. Again the EAT disagreed.
Despite the fact the whistleblower himself was adversely affected by the subject matter of the protected disclosures, the EAT upheld the Tribunal’s decision that 100 senior managers at the same employer formed a sufficient group to satisfy the test.
David von Hagen adds: “The EAT confirmed both that the test is one of belief rather than fact, and that a relatively small group of individuals, including the whistleblower, is sufficient. If the bar were factual and/or higher, it would defeat the object. Rather than preventing individual claims, the test could become a pretext for employers, on a technicality, to prevent or delay genuine claims. This was obviously not the intention behind the legislation.”