When is a disclosure related to a personal employment situation, also made in the public interest? This was the crux of the question to be decided by the Court of Appeal in the first case on this subject matter to go before it, Chesterton Global Limited v Mohamed Nurmohamed. And puzzle-lovers everywhere will be thrilled to learn that the answer “does not lend itself to absolute rules”. So although the concept of “the public interest” has, through its foray so far through the Tribunals, shrunk and grown like Alice in Wonderland, it turns out that it’s not a numbers game after all. Instead, the question of whether a disclosure is in the public interest “depends on the character of the interest served by it”. Curiouser and curiouser…
To begin at the beginning… the requirement for a disclosure to be “in the public interest” was introduced into whistleblowing legislation in 2013 to reverse the effect of the 2001 decision in Parkins v Sodexho, where an employee who was dismissed for complaining about having to operate a particular machine without supervision (said to be a breach of his employment contract), succeeded in bringing a whistleblowing claim. The possibility that any complaint about breach of any term of someone’s employment contract could qualify as a protected disclosure was seen to be an extension of the relevant legislation which went further than the original intention of parliament. However, during discussions prior to the introduction of the requirement for a disclosure to be “in the public interest” in 2013, it was observed that, although the aim was to prevent the “opportunistic use of breaches of an individual’s contract that are of a personal nature”, the intention was not to go so far as to prevent such breaches from ever being the subject of a legitimate whistleblowing claim. In short, it is possible for a disclosure to be both personally motivated and in the public interest. The question, therefore, is when?
The relevant facts of the present case were as follows. Mr Nurmohamed claimed to have been dismissed on the basis of his reporting what he felt were a number of discrepancies in the company’s new commission payment system. Mr Nurmohamed worked for Chestertons, a chain of estate agents, in Mayfair. Having monitored their internal accounts over a number of months, he reported to the director for the area a number of discrepancies which appeared to show the artificial suppression of profitability so as to reduce the level of commission payable. Clearly Mr Nurmohamed was concerned about the effect of this on his own commission. However, he also highlighted the fact that these discrepancies were affecting the earnings of over 100 senior managers. The question for the Court therefore, was whether Mr Nurmohamed reasonably believed that he was making this disclosure “in the public interest”, or whether this was a claim motivated purely by personal interest and not protected by the current whistleblowing legislation.
The previous appeal in this case had decided in favour of Mr Nurmohamed, on the basis that the “public” cannot only mean the public as a whole, as inevitably only a section of the public will be directly be affected by any disclosure; and a group of 100 managers was held to be a sufficiently large section. This was followed by the suggestion in the case of Mr D Underwood v Wincanton Plc, that a complaint concerning the unfair allocation of overtime, which affected four drivers, could amount to a protected disclosure.
Instead of focusing solely on size however, the Court of Appeal took a different approach. It was acknowledged that, as we are dealing here with a reasonable belief test, there may be more than one reasonable view on whether the disclosure in question was in the public interest. Furthermore, it was acknowledged that as long as the worker held a genuine and reasonable belief that his disclosure was in the public interest, that need not be the predominant motive for making the disclosure in the first place.
One of the big take home points of this judgment is that “public interest” is not to be determined solely by whether or not more than one person’s interest is served by the disclosure. It was said that if that were the case, it could make determination of the question dependent only on whether or not at least one other person within the same workplace happened to be affected in the same way, which cannot be right. However, before you throw away your abacus, the number of those affected may still be a relevant factor amongst others. This great puzzle is in fact solved only by considering a range of factors. In this particular judgement, the following factors were suggested:
- The number of employees sharing an interest in the disclosure – the idea being that the larger the number of persons whose interests are engaged, the more likely it is that the test will be satisfied.
- The nature/importance of the interests affected and the extent to which they are affected –wrongdoing directly affecting a very important interest being more likely to be in the public interest.
- The nature of the wrongdoing disclosed – clarified as meaning that disclosure of deliberate wrongdoing is more likely to be in the public interest.
- The identity of the wrongdoer – so that, to an extent, larger and more prominent wrongdoers will be more likely to engage the public interest.
In the instant case, Mr Nurmohamed’s was said to be a disclosure of deliberate wrongdoing, which took the form of mis-statements in the accounts adding up to £2-3m. The Court was of the opinion that had the accounts in question been statutory accounts, disclosure would unquestionably have been in the public interest; and in any event they still fed into the statutory accounts. This was especially important as Chestertons is “a very substantial and prominent business in the London property market”. Finally, it was still relevant that these mis-statements affected the earnings not just of Mr Nurmohamed but of over 100 senior managers. These factors combined led to the conclusion that the disclosures in question did amount to a protected disclosure, in that they could be said to have been in the public interest.
It would therefore seem that the answer to the riddle of the public interest test lies in the asking of a series of further questions; though not always the same questions, and not always in the same order. Yet this approach does seem to provide more clarity than the ever changing question of the number of people required to qualify as “the public”. Instead of searching for that elusive minimum number of affected people, it is at least now established that what is required is a fact-specific assessment in each case of the individual circumstances, guided by the suggestions of weight and relevance set out in this judgment. Or maybe we’re all mad after all.