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

employmentlaw@work / 14 July 2017

ISSUE:

The Court of Appeal (‘CA’) in Chesterton Global Ltd and another v Nurmohamed [2017] has held that a disclosure made in the personal interests of the worker could satisfy the “public interest” test.

In 2013 section 43B Employment Rights Act introduced the requirement that, for a disclosure of information to afford protection under whistleblowing legislation, the disclosure must be made in the public interest (the “public interest” test). This was intended to reverse earlier caselaw which allowed workers to bring a protected disclosure for alleged breaches of their own employment contracts.

Mr Nurmohamed raised concerns that company accounts had been manipulated to reduce the level of commission payable to 100 managers, including himself. The question for the CA was whether Mr Nurmohamed’s disclosure was made in the public interest, despite his personal motivation for making the disclosure.

The CA concluded that the “public interest” test does not lend itself to strict rules. In this case, disclosure was held to be in the public interest as it served the interests of other workers, and involved deliberate wrongdoing by way of financial misstatements on a substantial scale.

The CA went on to set out the following four factors to assess public interest where a disclosure relates to a breach of the worker’s own contract of employment:

  1. the number of workers affected;
  2. the nature of the interests affected;
  3. the nature of the wrongdoing disclosed; and
  4. the identity of the alleged wrongdoer.

KEY DATES:

The CA heard the appeal on 8 June 2017 and judgment was issued on 10 July 2017.

IMPACT:

The judgment is binding on Employment Tribunals, meaning they will be required to consider the four factors provided by the CA. Unfortunately, the “public interest” test has been left broad and so its interpretation will very much depend on the circumstances of each case.

ACTION:

Following this case employers may see an increase of claims under whistleblowing legislation. Employers should be aware of this judgment and should seek legal advice when a potential whistleblowing issue arises.

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