Chesterson Global Ltd. v Nurmohamed

Background

The “public interest test” was introduced into the whistleblowing regime in 2013. It was intended to prevent workers from using whistleblowing laws to raise complaints about their individual contracts, and placed the onus on employees to prove that they reasonably believed their disclosure was made “in the public interest”.

Mr Nurmohamed worked as branch manager of Chesterton, an estate agency. He, along with about 100 of his colleagues, was entitled to commission as part of his job. Mr Nurmohamed believed the business was manipulating the company accounts to reduce commission payments to its employees, and he claimed that he was dismissed because he had reported his concerns.

Decision

The Court of Appeal (COA) considered whether Mr Nurmohamed’s disclosure about a commission payment affecting 100 estate agents was something which could reasonably be believed to be in the “public interest”.

Answer: Yes, it was.

The COA made clear that the mere fact that something is in a worker's private interest does not prevent it from also being in the public interest. This, however, will be heavily fact-dependent and should be looked at in the round. The COA adopted four criteria as a useful starting point in considering whether a disclosure is in the public interest:

  1. The number in the group whose interests the disclosure served;
  2. The nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed. A disclosure of wrongdoing directly affecting a very important interest is more likely to be in the public interest than a disclosure of trivial wrongdoing affecting the same number of people;
  3. Disclosure of deliberate wrongdoing is more likely to be in the public interest than the disclosure of inadvertent wrongdoing affecting the same number of people;
  4. The larger or more prominent the wrongdoer (in terms of the size of its relevant community, i.e., staff, suppliers and clients), the more a disclosure about its activities will likely engage the public interest (but this should not be overstated).

In this case, 100 employees were affected by the deliberate and significant manipulation of public accounts carried out by a prominent business in the London property market, so it was found to be in the public interest.

A key point was that employee subjectively believed that the disclosure was in the public interest (even after the event) and in the tribunal's view that belief was objectively reasonable.

Comment

The public interest test must be considered on the facts of each case. The COA has declined to put a figure on how many people must be affected before the public interest test is triggered.

Employers should note this clarification of the public interest test and the potential applicability of the whistleblowing legislation to the workplace, such that they should not assume that just because a complaint or disclosure is about a workplace matter or an individual's own employment terms that it cannot also be a whistleblowing complaint.