The Court of Appeal upholds a tribunal’s decision that an individual’s disclosures were made in the public interest, despite his personal motivation in making the disclosures.

Chesterton Global Ltd (t/a Chestertons) and another v Nurmohamed, Court of Appeal

Facts

Mr Nurmohamed was a senior manager at Chestertons who made a serious of disclosures complaining about the manipulation of the company accounts, which he claimed had an adverse impact on his commission income (as well as the commission of around 100 other managers).

Following his dismissal, he pursued a number of claims against Chestertons on the grounds that he had made protected disclosures. His claims were upheld by an employment tribunal. Chestertons appealed on the grounds that by expressing concerns about his own commission income, Mr Nurmohamed’s disclosures were not ‘in the public interest’ as required by the legislation. The Employment Appeal Tribunal (EAT) dismissed the appeal. Chestertons appealed to the Court of Appeal.

Court of Appeal decision

The Court of Appeal has dismissed Chestertons’ appeal, upholding the finding of the employment tribunal. It rejected the employer’s argument that in order for a disclosure to meet the ‘public interest’ test, others outside of the workplace must be affected or must benefit from the disclosure.

The court was satisfied that when a disclosure relates to an individual’s own contract of employment, there may be circumstances that make it reasonable to regard the disclosure as being in the public interest. It will be for a tribunal to decide in all the particular circumstances of the case, including the number of employees the disclosure affects. However, the question of whether a disclosure is in the public interest depends on the character of the interest served by it rather than simply the number of people sharing it.

Consequences

The requirement for a disclosure to be ‘in the public interest’ was introduced as an amendment to the legislation in 2013, specifically to reverse the effect of the EAT's decision in the case of Parkins v Sodexho Ltd (2002), in which a worker was permitted to bring a claim in respect of an alleged breach of his own contract of employment.

The Court of Appeal has effectively left open the prospect for a breach of a worker’s own employment contract to be regarded as being ‘in the public interest’. However, the court said that tribunals should be cautious about reaching such a conclusion, since the intent behind the 2013 amendment was that private workplace disputes should not attract enhanced statutory protection. In practice, it is only likely to be in quite limited circumstances that a tribunal will be prepared to find such a disclosure to be in the public interest.