The Court of Appeal has now handed down its decision in the case of Chesterton Global Limited (t/a Chestertons) and another v Nurmohamed. In order for "whistleblowing" to be protected under UK law, it must be in the "public interest". This is the first case which has gone to the Court of Appeal so that it could determine what it means to blow the whistle "in the public interest".
In summary, the Court of Appeal have decided that:
In order to decide whether whistleblowing is in the "public interest" (or it is reasonable to believe this to be the case) a court has to look to the substance of the disclosure made and all the circumstances of the case. It is not possible to have a blanket rule that suggests where a disclosure is only about one individual (such as a personal grievance) that it has no public interest. Similarly, where the disclosure affects others (for example, miscalculation of holiday pay in a workforce) it may still have no public interest.
In looking at the substance of the disclosure to determine whether it is of public interest, a number of factors may be helpful to consider:
The numbers in the group affected by the disclosure - the larger the number the more likely a disclosure will be in the public interest;
The nature of any interests affected by the disclosure - a disclosure affecting a very important interest (for example, patient safety in the healthcare sector) is more likely to be in the public interest;
The nature of the wrongdoing disclosed - disclosure of deliberate wrongdoing is more likely to be in the public interest than disclosure of inadvertent wrongdoing;
The identity of the alleged wrongdoer - the larger/more prominent the wrongdoer, the more likely this is to engage the public interest.
The decision also confirms that the key issue is whether the whistleblower has a "reasonable belief" that his or her disclosure is in the public interest. As long as the whistleblower genuinely believes that her or his disclosure is in the public interest and this belief is objectively reasonable (in relation to which see the previous bullets), the public interest test will be met.
In the Chesterton case, this meant that Mr Nurmohamed's disclosures relating to Chesterton allegedly misstating internal company accounts, and thereby undervaluing bonus payment made to managers, was capable of being in the public interest.
What this means for employers
This decision upholds the EAT decision at the price of certainty for workers and employers alike. Going forward, whistleblowing claims, if they are not already, are likely to be extremely fact sensitive: in order for an Employment Tribunal to decide whether a worker has blown the whistle in the public interest, it will have to decide first whether the worker genuinely believed the disclosure was in the public interest at the time they blew the whistle, and secondly, whether objectively the substance of what was disclosed could be said to be in the public interest (and therefore the worker's belief was reasonable).
While in practice this is likely to continue to be a low threshold, it does appear that the Court of Appeal have raised the bar on protection slightly higher than where it sat before. Workers bringing whistleblowing claims may therefore have to try a little harder in order to succeed in their claims. Where employers believe that "whistleblowing" is purely personal in nature they will be encouraged to challenge whether whistleblowing claims can be brought at an earlier stage in proceedings.