Global menu

Our global pages

Close

Education HR e-briefing - When is whistleblowing ''in the public interest''?

  • United Kingdom
  • Education - Briefings

17-07-2017

In the case of Chesterton Global Limited v Nurmohamed, the Court of Appeal has provided a degree of clarification as to what “in the public interest” means for the purposes of UK whistleblowing protection.

Legal background

In 2013, changes were made to UK whistleblowing law intended to prevent individuals from claiming protection when pursuing alleged breaches of their own contracts of employment. Section 43B(1) Employment Rights Act 1996 was amended so that only disclosures which an individual reasonably believes are made “in the public interest” are now capable of falling within the definition of a “qualifying disclosure” and, therefore, of attracting protection under the whistleblowing legislation.

The phrase “in the public interest” is not defined in the Employment Rights Act and, as a result, since 2013 its meaning has been considered in a number of cases. In one recent tribunal case, for example, a dispute over employment terms raised by four employees was found to potentially qualify for whistleblowing protection because an issue of employee safety (and, therefore, public interest) was implicit in the individuals’ allegations (Underwood v Wincanton). The Court of Appeal’s clarification on the meaning of this critical phrase, “public interest”, is accordingly significant for the application of UK whistleblowing law and the effect of the 2013 changes.

Case Background

Mr Nurmohamed was a director at an office of the estate agency, Chestertons. He raised allegations that the company had deliberately manipulated office accounts to reduce commission payments, affecting some 100 or so managers including himself. He was later dismissed and brought claims of unfair dismissal and detriment arising from whistleblowing.

Before the employment tribunal, the question arose whether Mr Nurmohamed reasonably believed that the disclosures were in the public interest, as the law requires, or they stemmed from a personal grievance over pay - of the kind the 2013 changes sought to exclude from whistleblowing protection.

Tribunal decision

The employment tribunal found the fact that a substantial number of other managers were affected by Mr Nurmohamed’s allegations of employer-impropriety to be significant. On the question of “public interest”, the tribunal was satisfied that the legislation could not have been intended to mean something which is of interest to the entirety of the public, so that the words necessarily refer to a section of the public, such as might arise in the context of alleged hospital negligence or disclosures about drug companies, for example. In this case, since 100 or so senior managers were potentially affected by the allegedly fraudulent behaviour of the company, they were found to represent a sufficient group of the public to amount to the matter being in the public interest. Having come to this conclusion, the tribunal went on to uphold Mr Nurmohamed’s complaints.

Employment Appeal Tribunal decision

Chestertons appealed to the EAT, arguing that disclosures made in the interest of 100 or so managers did not amount to a sufficient section of the public to constitute a public interest and that it was for the tribunal to determine objectively whether the disclosures were of real public interest.

In rejecting the appeal, the EAT stated that the relevant question was not whether the disclosure was in the public interest but whether Mr Nurmohamed had a reasonable belief that it was. Applying an earlier Court of Appeal decision of Babula v Waltham Forest College, the EAT found that this would be the case, even if the basis of his disclosure was wrong and/or there was in fact no public interest in the disclosure, if the belief was reasonably held.

The EAT decided that the tribunal had properly considered whether Mr Nurmohamed had reasonably believed the disclosures were in the public interest and had concluded that he did reasonably hold this belief. The EAT went on to say that the introduction of the words “in the public interest” was to prevent a worker relying on a breach of his own employment contract, where that breach was of a personal nature and there was no wider public interest implications. Whilst the tribunal had recognised that Mr Nurmohamed was most concerned about himself, it was satisfied that he did have the other managers in mind, that a section of the public would be affected and that therefore the public interest test was satisfied.

Court of Appeal conclusions

Chestertons appealed further to the Court of Appeal arguing that for a disclosure to be in the public interest, the interests had to extend beyond the workplace and therefore if it only involved the interests of workers it could not be in the public interest. Public Concern at Work (intervening in the case), argued that a complaint was in the public interest if it was in the interests of anyone besides the worker making the disclosure. Mr Nurmohamed took a position between these two extremes, accepting that the mere fact that the disclosure was in the interests of other workers beside himself was not in itself enough, but that numbers were not irrelevant, nor did the disclosure always have to be in the interests of persons outside the workforce.

The Court of Appeal dismissed the appeal, concluding that there had been no error of law in the tribunal’s original decision. In doing so, the Court rejected a purely numbers based approach to the question of “in the public interest” (whether disclosure affects just one other person or multiple persons). Instead, the Court of Appeal found that the correct approach is to view each case on its own merits and that, in doing so, personal and public interests are not mutually exclusive.

So, for example, where a disclosure relates to a breach of the worker's own contract of employment (or some other matter under section 43B (1) where the interest in question is personal in character), there may nevertheless be features of the case that make it reasonable to regard disclosure as being in the public interest as well as in the personal interest of the worker. An example given was that of a disclosure tending to show that hospital doctors were being required to work excessive hours, an issue which might well be in the public interest, as well as in the personal interests of the doctors themselves, because of the risk to patients. This would be due to the nature of the disclosure and not depend on the number of doctors affected.

The Court of Appeal also endorsed four factors which it concluded might provide a “useful tool” in considering this issue in future:

(a) the numbers in the group whose interests the disclosure served –the higher the number, the greater the likelihood of a public interest arising;

(b) 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;

(c) 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;

(d) the identity of the alleged wrongdoer – 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

Although the aim of the 2013 changes was to prevent perceived opportunistic use of breaches of an individual's contract of a personal nature, it was not their intention for the provisions to operate to exclude such breaches where they also raise issues of public interest. The Court of Appeal decision now provides important insight into how courts –and therefore institutions – need to approach the issue of “public interest” in future.

Even so, going forwards, this is unlikely to prove a straight forward exercise. Institutions should review carefully the nature and potential impact of an alleged disclosure, the likelihood of a discloser demonstrating a reasonable belief in its veracity and any wider implications of the disclosure before concluding that it is purely personal in nature and that the individual falls outside whistleblowing protection.

For more information contact

David O'Hara, Principal Associate

< Go back

Print FriendlyTwitterLinkedInEmailShare
Subscribe to e-briefings