Whistleblowing: Court of Appeal gives its first decision on whether a disclosure is made in the ‘public interest’

In Chesterton Global Limited -v- Nurmohamed [2017] the Court of Appeal found that a disclosure made in the private interests of the worker could satisfy the public interest test.

Whilst this decision means that workers may, in some circumstances, be able to establish that a disclosure made in relation to their own private interests satisfies the public interest test, the Court of Appeal warned that Employment Tribunals should be cautious to make such a finding and a number of factors should be taken into account.

Background

In 2013, the Employment Rights Act 1996 was changed to introduce a requirement that, for whistleblowing purposes, the qualifying disclosure needed to be made ‘in the public interest’. The change was introduced to reverse the effect of Parkins -v- Sodexho Limited 2002 [IRLR 109] which effectively allowed workers to use the enhanced protection of the whistleblowing legislation to bring claims about alleged breaches of their own employment contracts.

The facts

Mr Nurmohamed, an estate agent, was employed by Chestertons as director of its Mayfair office. Mr Nurmohamed was paid commission for his work. He complained that under a new commission system, profitability figures were being artificially suppressed by his employer so as to reduce the level of commission payable to 100 senior managers including Mr Nurmohamed; he subsequently brought proceedings in the Employment Tribunal alleging that he suffered a detriment and was dismissed by reason of the disclosure. 

Mr Nurmohamed could only rely on the protection of the whistleblower legislation if he could show that he reasonably believed that the disclosure about his employer’s commission structure was made in the public interest. Both the Employment Tribunal and Employment Appeal Tribunal found that Mr Nurmohamed’s disclosure had been made in the public interest. Chestertons appealed.

The Court of Appeal’s decision

In a unanimous decision, Lord Justice Underhill found that even where a disclosure relates to a breach of the worker’s own contract of employment, there may still be features that make it reasonable to consider the disclosure as being in the public interest; in Mr Nurmohamed’s case, his disclosure served the interests of other workers as well. Lord Justice Underhill went on to say that the following factors will be relevant in deciding whether a disclosure relating to a worker’s private interest satisfies the public interest test:

• the number of workers affected
• the nature of the interests affected
• the nature of wrongdoing disclosed, and
• the identity of the alleged wrongdoer.  

Commentary

Employers may see a resurgence of claims advanced under the whistleblower legislation. However, tribunals will still be required to consider each case on its merits and take into account the four relevant factors laid down by the Court of Appeal. Employers of large workforces, and in particular employers in the public sector whose services are public in nature, are more likely to face claims from workers alleging that disclosures about their private interests affect the interests of other workers within their organisation, the wider sector and the public.