Court of Appeal provides clarity on ‘public interest’ whistleblowing cases
The recent case of Chesterton Global Limited -v- Nurmohamed 2017 has allowed for the first time the Court of Appeal to consider what it means for a disclosure to be ‘in the public interest’ in whistleblowing cases.
What is the significance of ‘public interest’ in whistleblowing cases?
In 2013, the Employment Rights Act 1996 was changed to introduce a requirement that, for whistleblowing purposes, the qualifying disclosure needed to be made ‘in the public interest’.
The change was introduced to reverse the effect of previous case law which effectively allowed workers to use the enhanced protection of the whistleblowing legislation to bring claims about alleged breaches of their own employment contracts. This was something that was not intended by Parliament’s original drafting.
In closing this loophole, an individual is now required to show for the purposes of making a qualifying disclosure that it is “in the reasonable belief of the worker making the disclosure, [the disclosure] is made in the public interest…”
However, the term ‘public interest’ and its scope had never previously been clarified.
- N was a senior manager working for C, a large firm of estate agents.
- He raised concerns that C’s accounts were being deliberately manipulated by senior management to justify decisions around pay, to his detriment as well as to the detriment of more than 100 other office managers.
- N was dismissed by C and brought a claim for unfair dismissal for having made a protected disclosure.
N could only rely on the protection of the whistleblower legislation if he could show that he reasonably believed that the disclosure about his employer’s commission structure was made in the public interest. Both the Employment Tribunal and Employment Appeal Tribunal had previously ruled that N’s disclosure had been made in the public interest. C appealed to the Court of Appeal (CoA).
The CoA agreed with the Employment Tribunal and Employment Appeal Tribunal’s original findings, rejecting C’s arguments that the public interest test could never be satisfied
- purely on the basis that the disclosure affected multiple other people, and
- where the issue did not affect anyone else outside of N’s workplace.
However, the CoA also rejected the argument made on behalf of N that a public interest exists as soon as the issue applies to more than one individual.
Instead, the CoA adopted a middle ground stance; concluding 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.
- The nature of the interest affected. A disclosure of wrongdoing directly affecting a very important interest is more likely to be in the public interest than a disclosure of trivial wrongdoing affecting the same number of people, and all the more so if the effect is marginal or indirect.
- The nature of the wrongdoing. Disclosure of deliberate wrongdoing is more likely to be in the public interest than the disclosure of inadvertent wrongdoing affecting the same number of people.
- The identity of the wrongdoer. The larger or more prominent the wrongdoer the more the disclosure is in the public interest (bad news for all larger employers and public bodies).
This decision does not aid employers and instead creates the possibility that the public interest requirement will not prevent many disclosures from being protected.
Those who have large workforces, and in particular employers in the public sector whose services are public in nature, are more likely to face claims from workers alleging that disclosures about their private interests affect the interests of other workers within their organisation, the wider sector and the public.
Employers should exercise caution if they are looking to take any action against a worker because they are complaining about the terms of their contract or how it is applied. If they know their complaint relates to their contract alone and nobody else’s, it is not in the public interest and therefore will not be a protected disclosure.
However, if the worker reasonably thinks others are affected as well, this decision may be sufficient to justify them bringing a complaint if they believe a legal obligation has not been complied with.
The judgment is good news for whistleblowers in that it provides them with a wide interpretation of what the public interest test means. Overall 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.