Chesterton Global Ltd (t/a Chestertons) v Nurmohamed [2017] EWCA Civ 979

The Court of Appeal ("CA") has confirmed that a contextual approach is to be taken when determining whether a disclosure is made in the reasonable belief that it is in the public interest, so as to entitle the discloser to statutory whistleblower protection under the Employment Rights Act 1996 (“ERA”).

Mr Nurmohamed had made repeated complaints to senior directors regarding discrepancies in his employer’s monthly accounts that were causing his and around 100 other managers' commission payments to be reduced. He was subsequently dismissed and, after bringing various employment claims, was found to have been automatically unfairly dismissed on the grounds of having made protected disclosures. The decision was upheld by the EAT.

The CA has clarified that, when presented with whistleblowing cases, tribunals should focus on the reasonableness of an individual’s belief, rather than the abstract definition of public interest. This will require an assessment of whether: (1) the worker genuinely (and subjectively) believed that their disclosure was in the public interest at the time it was made; and (2) that such a belief was objectively reasonable. The particular reasons for the worker's belief are not material and the tribunal should not 'substitute its own view' for that of the worker since ‘…a belief may be reasonable even though it is wrong’.

The CA concluded that parliament had left the term ‘public interest’ intentionally undefined, since it does not ‘lend itself to absolute rules’. Instead, it was a factual concept to be applied flexibly ‘as a matter of educated impression’, to exclude matters raised solely in the private and/or personal interest of the relevant worker. The number of affected individuals (100 managers in this case); the type of interests affected; the nature of the wrongdoing; and the identity of the alleged wrongdoer may all be useful pointers. In this case, the CA found in favour of Mr Nurmohamed.

While the decision does not provide certainty to employers, it does offer some useful guidance for when employee complaints should be treated as protected disclosures. It also demonstrates the importance of ensuring robust whistleblowing policies are in place. Given the outcome of this decision, a sensible policy may be to treat all employee disclosures which address more than mere private issues as protected disclosures pending further investigation.