Whistleblowing - Does the public interest test have any relevance following Chesterton v Nurmohamed?

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Summary: For the first time, the Court of Appeal has considered what it means for a disclosure to be ‘in the public interest’. In an unhelpful decision for employers, it held that a disclosure made by a manager about alleged manipulation of accounts which artificially reduced his bonus satisfied the public interest requirement. Although the disclosure concerned his own private interests, it was sufficient that the issue also affected 100 other managers.

Why is public interest relevant in whistleblowing cases?

Prior to 2013, an individual could make a protected disclosure about a breach of his or her own employment contract. It was felt that this went further than Parliament had intended, so the law was amended to require the individual to have a reasonable belief that the disclosure is in the public interest.

What is meant by a “public interest”

Public interest is not defined in the legislation but it has now been considered by the Court of Appeal. In Chesterton v Nurmohamed, it upheld the decisions of the Tribunal and the EAT, finding that a claimant can have a reasonable belief that a disclosure is made in the public interest even where the “public” consists only of other individuals within the same workplace. In the case in question, the employee made a disclosure concerning alleged accounting irregularities. This affected his own bonus but also 100 other managers on similar arrangements.

The Court of Appeal rejected the employer’s arguments that the public interest test could never be satisfied (a) purely on the basis that the disclosure affected multiple other people, and (b) where the issue did not affect anyone else outside of the claimant’s workplace. However, it also rejected the argument made on behalf of Public Concern at Work that a public interest exists as soon as the issue applies to more than one individual.

Instead, the Court of Appeal took a middle ground. It concluded that, where a disclosure appears to be made for personal reasons, the Tribunal must consider all the circumstances, including:

  • The number of affected employees. An issue affecting only one or two employees is less likely to be protected than one which affects an entire workforce, although the Court of Appeal stressed that this factor should be considered with caution.
  • The nature of the interest affected. If the interest is important, it may be in the public interest even if the group affected is small.
  • The nature of the wrongdoing. A deliberate wrongdoing is more likely to attract protection than an inadvertent one.
  • The identity of the wrongdoer. The larger and/or more significant the wrongdoer, the more likely its activities engage public interest.

What are the practical implications for employers?

This decision does not provide the assistance that employers were hoping for. The net effect of the Court of Appeal’s decision is that it remains relatively easy for a worker to demonstrate that they have a reasonable belief that their disclosure is in the public interest in all but the most directly personal of issues.

This is especially true given that the Court of Appeal also confirmed that a claimant will not fail the public interest test simply because they do not articulate the reason for their alleged reasonable belief until after the event, as is common. Worse, the public interest need not be their sole or even main motivation; a disclosure can still qualify for protection even if the claimant’s motivation for making it is in bad faith.

 

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