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Test for public interest in whistleblowing is complex - but not met simply by another employee being affected

In 2013 the law governing whistleblowing protection was changed to require a worker’s disclosure to be made in the public interest.

In 2013 the law governing whistleblowing protection was changed to require a worker’s disclosure to be made in the public interest. That was intended to stop a complaint about an individual’s own employment contract and their private position laying the foundation for a protected disclosure. However ever since the change there has been uncertainty about what being in the public interest actually requires. Does it only require another employee to also be affected by the same issue, or is the test only satisfied if there is an impact on those external to the organisation? In an important Judgment, the Court of Appeal in Chesterton Global v Nurmohamed has confirmed that neither of these absolute positions is correct – the public interest test is a complex one to be undertaken in each case.

The detail

Mr Nurmohamed was unfairly dismissed from his senior role by a firm of estate agents. The Tribunal hearing the case also found that his dismissal (as well as some detriment) was because he made a protected disclosure. The employer appealed against this finding (presumably because the potential remedy for whistleblowing claims is unlimited unlike the remedy for ordinary unfair dismissal), arguing that the disclosures relied upon did not satisfy the new public interest test.

The employee’s disclosures arose because of his commission scheme. What he alleged was that senior management were manipulating the accounts. It was suggested this would result in a lower bonus being paid, importantly not only to Mr Nurmohamed himself, but also to over 100 senior managers. The Tribunal held that this group was sufficient to enable the public interest requirement to be met, and the Court of Appeal has agreed they were able to do so.

The Court emphasises that the test is whether the individual making the disclosures reasonably believed that it was in the public interest, not whether in fact it was. In this case, the Tribunal was able to decide that Mr Nurmohamed reasonably believed that the disclosure was in the public interest. However applying the legal requirement “does not lend itself to absolute rules”. In a whistleblower case where the disclosure relates to a breach of the worker’s own contract, there may nevertheless be features which make it reasonable to regard disclosure as in the public interest. However just because other employees share an interest in the same contractual issue, does not of itself make raising it in the public interest.

As a guide the Court suggests the following factors are relevant:

  • the number in the group whose interests the disclosure serves – the more employees and/or others affected the more likely it is to be in the public interest;
  • the nature of the interest affected and the extent to which they are affected by the wrongdoing disclosed - a trivial wrongdoing is less likely to be covered;
  • the nature of the wrongdoing disclosed – disclosing deliberate wrongdoing is more likely to be in the public interest than inadvertent;
  • the identity of the alleged wrongdoer – the larger or more prominent the wrongdoer the more the disclosure is in the public interest (so that’s bad news for all larger employers and public bodies).

What does this mean for me?

Be careful if you decide 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, it is not in the public interest and therefore not a protected disclosure. However if the worker reasonably thinks others are affected as well, this may be sufficient to bring their complaint within the matters legally protected (if they believe a legal obligation has not been complied with). This Judgment is more restrictive than that of the Employment Appeal Tribunal in the same case which suggested that any disclosure which affected other employees was almost automatically in the public interest, however the case-by-case complex assessment it introduces will make it hard for you to know with certainty that a complaint is certainly not in the public interest.

As there is no longer a requirement for such disclosures to be in good faith, this Judgment means that an employee raising matters through pure self-interest will legitimately be able to argue it was in the public interest, if a number of other employees may have had the same complaint or indeed if what is raised could also be reasonably thought to affect some clients, customers, patients or service-users.

Sometimes we find it can be a surprise to employers what is covered as a public interest disclosure, so if in doubt tread with care and take advice.

Comment

As a decision of the Court of Appeal this Judgment will now provide the test applied by all Employment Tribunals when considering whether a disclosure is protected by being in the public interest. It is a complex test, so if you are considering dismissing or adversely treating workers because of complaints they’ve raised (or in circumstances where they have also made such complaints), do take advice – it is better to do so aware of the risks and pitfalls in doing so. This Judgment does create the possibility that the public interest requirement will not preclude many disclosures from being protected, particularly for larger employers or those of whose very activities can be argued to be in the wider public interest.

If this case raise any issues for your organisation or you have any concerns about whistleblowing issues or complaints, please speak to your usual contact in the Weightmans employment, pensions and immigration team, or contact Phil Allen at Phil.Allen@Weightmans.com.