When whistleblowing is in the public interest… and it’s not just a question of numbers

This update reports on the Court of Appeal’s judgment in Chesterton Global Limited and anor v Nurmohamed in which it considered the public interest requirement of the UK’s whistleblowing legislation. 

Whistleblowing protection 

In order to be protected against detriment or dismissal under the UK’s whistleblowing legislation, a worker is required to have made a “protected disclosure”. Amongst other requirements, a “protected disclosure” must tend to show that one or more of the six specified types of wrongdoing (such as a failure to comply with a legal obligation or a miscarriage of justice) has taken place, is taking place, or is likely to take place. Since 2013, the worker must also reasonably believe that the disclosure is made in the “public interest”. What is in the public interest is not specifically defined in the UK whistleblowing legislation. The Court of Appeal in its judgment highlighted the two questions which the tribunal must address in determining this issue – first, whether the worker believed, at the time he was making it, that the disclosure was in the public interest and second – whether, if so, that belief was reasonable. 

Mr Nurmohamed’s complaint 

In this case, Mr Nurmohamed was a director of the Mayfair office of Chesterton Global Limited, a large firm of estate agents. He made three alleged protected disclosures, one of which was made to his employer’s Director of Human Relations. Mr Nurmohamed reported his belief that the employer was deliberately misstating £2-3 million of actual costs and liabilities in its accounts. He argued that the consequence of Chesterton’s alleged conduct was that senior managers, including himself, received lower bonuses than they might otherwise have received, thereby increasing the employer’s profitability. The issue potentially affected around 100 of Chesterton’s employees. 

The Employment Tribunal concluded that Mr Nurmohamed had held a reasonable belief that his complaints which were disclosures were in the public interest. On appeal, the Employment Appeal Tribunal (“EAT”) upheld that decision. 

The Court of Appeal’s decision 

The Court of Appeal rejected Chesterton’s appeal, finding that the Employment Tribunal had been entitled to find that the public interest test was satisfied in this case, and made the following observations: 

1. There may be more than one reasonable view as to whether a particular disclosure was in the public interest. The Employment Tribunal must, however, take care not to substitute its view for that of the employee. 
2. The belief which the worker must hold in order to attract the protection of the whistleblowing legislation is that the disclosure is in the public interest. The reasons why the worker believed that are not “of the essence”. What matters was that the worker’s (subjective) belief was (objectively) reasonable. 
3. The worker’s predominant motivation does not need to be promoting the public interest. The worker’s belief that his or her disclosure is in the public interest is a requirement for the protection of the whistleblowing legislation to apply but the worker’s motivation in making the disclosure is not. 
4. There was little value in seeking to provide any “general gloss” on the public interest requirement which Parliament had left undefined. Lord Justice Underhill, who delivered the leading judgment, considered that determining whether a matter was in the public interest was a question which did not lend itself to absolute rules. 

The Court of Appeal declined to give more specific guidance on whether, for a matter to be in the public interest, it needed to affect a certain number of people i.e. to be broad enough in effect to have some public interest. Counsel for Chesterton had sought to argue that the fact a disclosure affects a multiplicity of workers sharing the same interest is not enough – and that the matter must extend beyond the workplace to satisfy the public interest requirement. The Court of Appeal disagreed. Equally, the Court of Appeal also rejected the position of Counsel for PCaW who sought to argue that the public interest element should be satisfied if any other person, beyond the individual making the disclosure, was affected by the matter in question. 

The Court of Appeal stated that the correct approach, when the disclosure relates to a breach of the worker’s own contract, is to consider whether there were features of the case that make it reasonable to regard the disclosure as being in the public interest as well as in the interest of the worker. The question is “one to be answered by the Tribunal on a consideration of all the circumstances of the particular case”. 

The Court of Appeal said that the following fourfold classification of the relevant factors – as suggested by Counsel for Mr Nurmohamed - may be useful in this determination: 

1. The numbers in the group whose interests the disclosure served (however, the fact that a disclosure affects a large number of employees is unlikely, of itself, to be sufficient). 
2. The nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed – 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. 
3. The nature of the wrongdoing disclosed – 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. 
4. The identity of the alleged wrongdoer – agreeing with the submissions made on behalf of Mr Nurmohamed: “the larger or more prominent the wrongdoer (in terms of the size of its relevant community, i.e. staff, suppliers and clients), the more obviously should a disclosure about its activities engage the public interest”. 

Comment 

In some ways, the decision is both good and bad news for employers. That the Court of Appeal has rejected a “bright line” approach to the issue of what is in the public interest will not simplify the determination of disputes about whether a worker has made a disclosure which attracts the protection of the whistleblowing legislation. However, at least employers have been provided with guidance as to the factors which are relevant and therefore may still be able to argue that a worker’s complaint about his or her own treatment does not qualify for the legislation’s enhanced protection.