Chesterton Global Ltd v. Nurmohamed
The Chesterton case has been doing the rounds for a number of years. The facts are relatively straightforward but the principles involved are highly important.
Mr Nurmohamed and around 100 of his colleagues had profit-based commission arrangements in place. Mr Nurmohamed made a number of complaints that the company was deliberately manipulating its accounts by overstating its actual costs and liabilities, in order to reduce the commission payments. Mr Nurmohamed was dismissed and brought a number of claims, including a claim under the whistleblowing legislation. The key question in the claim was whether or not Mr Nurmohamed's disclosure was in the public interest.
In June 2013, the whistleblowing legislation was amended to require that, in order to benefit from protection, a worker must have reasonably believed that he or she was making the disclosure "in the public interest". The scope of this test has been hotly debated since the changes were introduced and Chesterton was the first appeal case to consider the issue.
The Court of Appeal dismissed the employer's appeal and has, effectively, confirmed that the threshold for meeting the public interest test may be relatively low. The Court noted that parliament had chosen not to define what "the public interest" means in the context of a protected disclosure, and it must therefore have intended employment tribunals to apply it "as a matter of educated impression". Essentially, there are no absolute rules as to what can be in the public interest.
The Court also noted that public interest and personal interest may not be mutually exclusive. It held that, in a whistleblowing case where the disclosure relates to a personal matter (such as breach of the whistleblower's contract), there may nevertheless be features of the case that make it reasonable for the worker to regard disclosure as being in the public interest as well as their own personal interest. This will be largely fact specific. The larger the number of persons whose interests are engaged by a breach of the contract of employment, the more likely it is that there will be other features of the situation which will engage the public interest.
Perhaps controversially, the Court also noted that belief in the public interest need not be the predominant motive for making the disclosure, or even form part of the worker's motivation. The statute uses the phrase "in the belief…", which is not the same as "motivated by the belief…".
From a practical perspective, the Court cited its approval for the four factors proposed by Mr Nurmohamed's counsel as a "useful tool" to help assess the reasonableness of a worker's belief that disclosure was in the public interest:
- the numbers in the group whose interests the disclosure served;
- the nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed;
- the nature of the wrongdoing disclosed; and
- the identity of the alleged wrongdoer.
In Chesterton, the Court found that the disclosure related to deliberate wrongdoing, which, together with a number of other factors, was likely to render Mr Nurmohamed's belief that the disclosure was in the public interest reasonable.
The decision has been seen as a win for whistleblowers and a warning for employers. However, Underhill LJ did sound a note of caution to tribunals not to offend the "broad intent" behind the public interest test, which was to prevent whistleblowing laws being used in the context of "private workplace disputes", where none of the other factors pointing towards a public interest element are present.