In Chesterton Global Ltd and another v Nurmohamed, the Employment Appeal Tribunal (“EAT”) gave the first appellate decision on the meaning of the words “public interest”, which were added to whistleblowing legislation on 25 June 2013 in order to exclude whistleblowing complaints based solely on breaches of a worker’s own contract of employment.
A partner in this firm’s employment department, David von Hagen, has represented Mr Nurmohamed, the Claimant in this case, throughout.
Mr Nurmohamed was Director of the Mayfair office at Chesterton Humberts (now Chestertons), a leading estate agency. In August 2013, he raised issues of serious accounting irregularities as part of his annual appraisal. This was reported back to the main board. In September 2013, he was forced to attend a performance management meeting to discuss alleged poor performance, following which he raised further concerns about serious accounting irregularities. Mr Nurmohamed’s complaints were based on the assertion that Chestertons was deliberately overstating actual costs and liabilities incurred, resulting in lower commission payments for around 100 senior managers, including Mr Nurmohamed. On 16 October 2013 Mr Nurmohamed was called to a “disciplinary meeting”, and summarily dismissed for alleged gross misconduct, although no evidence was provided.
Following his dismissal, Mr Mohamed brought various claims in the Employment Tribunal (“ET”) against Chestertons. The ET found he had been automatically unfairly dismissed and had suffered detriments for whistleblowing.
As the disclosures were made after June 2013, the ET had to decide the new test of whether the Claimant’s disclosures satisfied the test of having been made in the “public interest”. As was decided in this case, it is sufficient that the worker reasonably believes the disclosure to be in the public interest, it does not matter if he turns out to be wrong.
The ET held that it was not required that a disclosure had to be of interest to the entirety of the public. It was inevitable that only a section of the public would be directly affected by any given disclosure. The ET accepted that Mr Nurmohamed reasonably believed at the time that his disclosures were in the interests of the other 100 senior managers affected and that this was a sufficient group of the public to satisfy the public interest test. This was despite the ET finding that Mr Nurmohamed was primarily concerned with his own position.
Chestertons appealed the ET’s finding that the disclosure was made in the public interest. The EAT upheld the ET’s decision.
The EAT confirmed the point that the public interest test was a question of reasonable belief, and went on to support the argument that the test was designed to exclude claims based only an individual’s own contract. It said that the number of other people affected was not important, and the fact that Mr Nurmohamed was one of those affected also did not matter. 100 people was a large enough group and that group was in Mr Nurmohamed’s mind at the time he made the disclosures. That was sufficient.
The decision is good news to potential whistleblowers, since the EAT seems to have made it clear that there is a fairly low threshold (in this case 100) for the public interest test to be satisfied.
It will be interesting to see what future authorities make of smaller groups.