Lessons from the first case to use ‘public interest’ whistleblowing test

A small group of employees may be enough to satisfy ‘public’ definition

In the case Chesterton Global v Nurmohamed the Employment Appeal Tribunal had to consider for the first time the public interest test introduced into the UK’s whistleblowing legislation in 2013.

Background
In order to be protected against detrimental treatment or dismissal by the UK whistleblowing legislation, a worker must have made a “protected disclosure”. This is a disclosure that shows that one or more of six specified types of wrongdoing (such as a failure to comply with a legal obligation or a miscarriage of justice) has taken place, is taking place, or is likely to take place.

Since 2013, whistleblowers must believe that making the disclosure is in the public interest, and must be able to show that that belief is reasonable. The change was intended to ensure that the whistleblowing legislation only provides protection in relation to matters of genuine public interest and to reverse the effect of the decision in a previous case, Parkins v Sodexho. In that case, the EAT held that a protected disclosure could be made about an actual or alleged breach of an employment contract, as this was a breach of a legal obligation. This interpretation meant that employees would be covered by the whistleblowing legislation – which applies regardless of length of service and for which compensation awards are unlimited – if they complained about the employer breaching its obligations to them and suffered detrimental treatment or were dismissed as a result.

Facts
Nurmohamed was a director of the Mayfair office of a global firm of estate agents. He reported that he believed his employer was deliberately misstating £2–3 million of actual costs and liabilities through its office and departmental network. He argued that the consequence of the employer’s alleged conduct was that 100 senior managers received lower bonuses than they might otherwise have received, thereby increasing the employer’s profitability.

Tribunal
An employment tribunal concluded that Nurmohamed did believe that his disclosures were in the interest of the firm’s senior managers, that that belief was reasonable, and that the managers were a sufficient group of the public for his disclosure to be in the public interest. Although he was primarily concerned about the impact on his own bonus, the tribunal accepted that Nurmohamed did have the other office managers in mind. His claims of automatically unfair dismissal and detrimental treatment for whistleblowing succeeded.

EAT
The Employment Appeal Tribunal rejected the employer’s appeal against the tribunal’s decision. The EAT considered that the sole purpose of the amendment to the whistleblowing legislation in 2013 (adding the explicit public interest test) was to reverse the effect of the Parkins case and, therefore, remove the possibility of the whistleblowing legislation being used opportunistically for private purposes. It said the words “in the public interest” were introduced to prevent workers from relying on a breach of their own contract of employment where the breach is of a personal nature and there are no wider public interest implications. The EAT rejected the employer’s arguments that the current case was a private and personal dispute rather than a public one.

The EAT noted that:

• a relatively small group of individuals may be sufficient to satisfy the public interest test
• the test is whether the worker’s belief that the disclosure was made in the public interest was reasonable, even if that belief is incorrect
• the employer in this case being a private, rather than a publicly listed company, was not relevant to whether the disclosures were made in the public interest.

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