Testing beliefs: whistleblowing and ‘public interest’

Sarah Lamont | Employment, Bevan Brittan

Sarah Lamont considers defining a whistleblower’s belief that their disclosure is in the ‘public interest’. How ‘public’ does the ‘interest’ need to be?

The background

In order to qualify as a ‘protected disclosure’ (or ‘whistleblowing disclosure’) a disclosure must comply with the statutory definition: it must be a disclosure of information which:

  • in the reasonable belief of the worker making it
  • is made in the public interest; and
  • identifies one or more of six specified types of wrongdoing (criminal offences, breach of any legal obligation, miscarriages of justice, danger to the health and safety of any individual, damage to the environment or the deliberate concealing of information about any of the preceding matters).

Although whistleblowing protection derives from the Public Interest Disclosure Act 1998 [our emphasis], the original legislation contained no requirement for a whistleblowing disclosure to have any ‘public interest’ element.  This was viewed as something of a loophole for claimants, who often sought to make use of whistleblowing protections in relation to allegations or complaints about their own contracts of employment – which was thought to run contrary to the original intention of the legislation.

In order to close down this practice, in 2013 a ‘public interest’ element was introduced to the definition of a protected disclosure. However, the legislation did not go as far as specifically excluding concerns about workers’ own contracts of employment; and neither did it explain what was meant by ‘public interest’.

This left the door open to two possibilities:

  1. that employment tribunals might adopt a wide construction of the phrase ‘in the public interest’; and
  2. that individuals might still bring whistleblowing claims in respect of their own contracts of employment, if they could demonstrate that they reasonably believed that a wider public interest was engaged.

Workers who are found to have made a statutory protected disclosure benefit from a range of additional protections

  • the right to claim automatically unfair dismissal
  • protection from detriment
  • uncapped compensation if successful at employment tribunal.

There are, therefore, significant incentives for employees and workers to identify themselves as ‘whistleblowers’.

The facts

In Chesterton Global Ltd v Nurmohamed [2017] EWCA Civ 979, Mr Nurmohamed, a senior manager at a branch of estate agents, Chesterton, alleged that the company was deliberately supplying inaccurate figures to its accountant, which resulted in lower profit-based commission payments for him and around 100 senior managers.

Mr Nurmohamed was dismissed and brought a whistleblowing claim against Chesterton, arguing that it was his reasonable belief that his disclosures were in the public interest.  Although he acknowledged that his primary concern was his own losses under his contract, he argued that the fact that his concerns related to a large group of managers meant that the disclosures were also in the public interest.

An employment tribunal agreed with Mr Nurmohamed and found that his dismissal was automatically unfair for making a ‘whistleblowing’ protected disclosure. Chesterton appealed to the Employment Appeal Tribunal, which dismissed the appeal, finding that the ‘public interest’ test was satisfied, notwithstanding that Mr Nurmohamed was motivated mainly by concern about his own income.

Chesterton appealed to the Court of Appeal.

The decision

The Court of Appeal (CA) dismissed Chesterton’s arguments and allowed a wide interpretation of the public interest test.

The CA noted that the key questions are:

  • whether the worker subjectively believed, at the time, that the disclosure was in the public interest; and
  • if so, whether that belief was objectively reasonable.

The emphasis is, therefore, on what the worker believed when making the disclosure, subject to an objective assessment of reasonableness by the employment tribunal.

The CA declined to provide any “bright line rule” setting out that anything which engages the interest of anyone other than the worker would pass the ‘public interest’ test. In doing so, the CA commented that the question “does not lend itself to absolute rules” – especially because the elusive question is not what is in fact in the public interest, but what could reasonably be believed to be.

That said, the CA’s view was that tribunals should not rush towards finding that the disclosure of a breach of a worker’s contract is in the public interest, and counselled employment tribunals to be cautious about reaching such a conclusion.

What does this mean for me?

Where does this leave employers attempting to apply this complex test?  Helpfully, in its decision, the CA suggested four factors as a ‘useful tool’ to weigh up the reasonableness of a worker’s belief that disclosure was in the public interest:

  1. The numbers in the group whose interests the disclosure served.
  2. The nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed: the more important the interest and the greater numbers of people affected, the greater the likelihood of the disclosure falling within the public interest.
  3. 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.
  4. The identity of the alleged wrongdoer. The larger or more prominent the wrongdoer, the more likely it is that disclosure about its activities will engage the public interest.

In other words, the test is not simply a matter of numbers; this will be one of a range of factors that should be considered by tribunals and, by extension, employers. Furthermore, it is important to remember that it is not a question of whether the disclosure itself is actually in the public interest, but whether the individual (subjectively) believed it to be and was (objectively) reasonable in doing so.

Whilst this decision sheds welcome light on the definition of the new public interest test for whistleblowing claims, there is no direct impact on employer policies or procedures. Employers will, however, need to be mindful of the test set out above when considering whether a disclosure made by a worker brings them within the remit of the extended protections afforded to whistleblowers.