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Whistleblowing: Court of Appeal rules on “public interest” test

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The Court of Appeal has delivered its judgment in the recent whistleblowing case of Chesterton Global Ltd and another v Nurmohamed, the first case of its kind to reach the Court of Appeal.

This is a significant case that sets out the approach to be taken by tribunals when deciding if a disclosure is “in the public interest”, a requirement for statutory whistleblowing protection. This “public interest” test was introduced in June 2013 in order to prevent workers from using whistleblowing protection laws to bring claims where they make disclosures about a breach of their own employment contract.

Mr Nurmohamed, an estate agent, had successfully brought a claim in the employment tribunal for dismissal and suffering detriment as a result of making a protected disclosure. He had raised a concern that there were misstatements in Chesterton Global’s management accounts, which he alleged were designed to reduce the amount of commission paid to around 100 senior managers, including himself.

The Employment Tribunal decided that his disclosures were in the public interest. The tribunal’s decision was upheld by the Employment Appeal Tribunal. The employer appealed to the Court of Appeal. The Court of Appeal heard arguments on behalf of the employer and Mr Nurmohamed as to alternative meanings on what constitutes a public interest.  The court rejected the arguments of Public Concern at Work and the arguments on behalf of the employer. These were  that the interests affected by the disclosure should extend beyond the employer’s workforce.

The Court noted that the issue is not whether the tribunal thinks that the disclosure was in the public interest, but whether the whistleblower thought so, and whether that belief was objectively reasonable at the time. There are no “absolute rules” about what it is reasonable to view as being in the public interest. The number of people affected by the issue is a relevant factor although tribunals should be cautious about treating this as determinative. There will usually be other relevant factors such as the nature and extent of the interests affected, the nature of the wrongdoing (particularly where it is alleged to be deliberate), and the identity of the alleged wrongdoer. Therefore, whilst employers and employees may consider the scope of the public interest test to be somewhat limited by this ruling, the Court of appeal has not given whistleblowers a blank cheque.