A worker will only be protected from detriment or dismissal if the disclosure is made in the reasonable belief that it was in the public interest. Since its introduction in June 2013, employment tribunals have been applying the public interest test to whistleblowing cases without guidance as to its meaning, as the phrase is not defined in legislation. In the first case to reach the Court of Appeal on the issue, the judgment in Chesterton provides helpful direction as to the factors to be considered when assessing whether a worker reasonably believed their disclosure to be in the public interest: Chesterton Global Ltd & anr v Nurmohamed & anr [2017] EWCA Civ 979

Protection for whistleblowers

The Public Interest Disclosure Act 1998 protects workers who blow the whistle, not just for their own private gain but – as the name suggests – in the public interest.

Estate agency employee complains about dishonest accountancy practices

Mr Nurmohamed was a senior employee of Chestertons, a privately owned estate agency. Chestertons terminated his employment after he made a number of complaints (which he would later allege to be disclosures) to his employer regarding what he perceived as dishonest accountancy practices, whereby costs and liabilities were overstated in the internal accounts. These accountancy practices impacted negatively on the commission payments awarded to him and 99 other senior employees. The first instance tribunal and the Employment Appeal Tribunal both concluded that Mr Nurmohamed’s disclosures were in the public interest, and therefore his dismissal was automatically unfair.

Can the interests of 99 workers amount to being in the “public interest”?

Chestertons argued that, for a disclosure to be truly in the public interest, it would have to serve the interests of non-employees. The fact that 99 other employees’ interests were also served by Mr Nurmohamed’s disclosure was mere evidence of a “multiplicity of workers sharing the same interest” rather than a public interest being served. The number of workers affected was, Chestertons argued, therefore not relevant.

How to measure public interest

The Court of Appeal disagreed, and considered the following factors, put forward by the employee, as a “helpful tool” for an employment tribunal to use:

  • the numbers in the group whose interests the disclosure served – although not in itself a determinative factor;

  • the nature of the interests affected and the extent to which they are affected by the wrong doing disclosed – a disclosure affecting a very important interest is more likely to engage the public interest than a disclosure of a trivial nature;
  • the nature of the wrongdoing disclosed – especially where it is a deliberate act of wrongdoing; and
  • the identity of the alleged wrongdoer – a disclosure concerning a more prominent wrongdoer is more likely to serve the public interest.

The court found that the public interest test was satisfied. A large number of employees was affected by the wrongdoing, which revealed a GBP 2-3 million mis-statement in the internal accounts. It was a deliberate act of wrongdoing, carried out by a prominent high-street firm. Interestingly, Underhill LJ said that had the disclosure related to statutory, rather than internal, accounts, there would have been no question that it would have been in the public interest.

A subjective test

The court emphasised that what is in the public interest cannot be determined by absolute rules, especially in light of the fact that “the decisive question is not what is in fact in the public interest but what could be reasonably be believed to be”.

COMMENT

The decision confirms that there continues to be a low threshold for workers to come under the statutory protection regime for whistleblowers. Of fundamental importance is the fact that the disclosure need only be in the public interest according to the “reasonable belief” of the person making the disclosure.

While the “public interest” element is an additional hurdle for whistleblowers, in practice it will not prove too difficult to show that a disclosure that is personal in character may also have certain features that would make it in the public interest. This does not however, as the judgment makes clear, mean a return to employees being able to use whistle-blowing protection as a vehicle for complaints about an individual’s own employment contract. The 2002 ruling in Parkins v Sodexho Ltd [2002] IRLR 109 expanded whistleblower protection to any employee who made a disclosure about a legal breach of their own terms of employment. The “public interest” requirement was subsequently introduced into the Act in June 2013 as a response to the Sodexho ruling, in an attempt to ensure that private workplace disputes with no ostensible public interest angle no longer attract statutory whistleblower protection.