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.
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.