When is a Whistleblowing Disclosure in the Public Interest?

The Court of Appeal has given its judgment in the case of Chesterton Global Limited v Nurmohamed on the question of whether a whistleblowing disclosure is in the public interest.  

Speedread

The Court of Appeal has ruled that whether a whistleblowing disclosure is in the public interest depends on the character of the interest served by it, rather than simply on the number of people sharing it. Nevertheless, there may be cases where the fact that many people share the same interest can convert a personal interest into a public one.  In addition, where a disclosure relates to a breach of a worker’s own employment contract (or some other purely personal interest) there may be other features that make it reasonable to regard the disclosure as being in the public interest.  

The employment tribunal had been entitled to find that an employee who alleged that his employer manipulated its management accounts so as to reduce the level of commission it had to pay him and a number of other employees reasonably believed that the disclosure was in the public interest.  

Facts

In Chesterton Global Limited v Nurmohamed, Mr Nurmohamed was employed by Chestertons estate agents, as Manager of its Mayfair office, until his dismissal in October 2013.  In addition to salary, he received commission payments calculated in accordance with a commission policy which applied to branch managers and other senior employees.  Mr Nurmohamed had alleged that Chestertons was manipulating its management accounts so as to reduce the level of commission it had to pay. Chestertons denied this.  The employment tribunal made no finding that the allegation was correct as the truth of the allegation is not something which the employment tribunal has to decide. Mr Nurmohamed alleged that he had been dismissed for being a whistleblower and so his dismissal was automatically unfair.  

The employment tribunal agreed. The employment tribunal considered that the public interest requirement in the whistleblowing legislation had been met.  At the time he disclosed the information, he had in mind that it was in the interest of 100 senior managers who were subject to the policy (it subsequently turned out that the number of managers who could have been affected was 77).  This was held to be a sufficient public interest to qualify for protection and his belief that the disclosure was in the public interest was reasonable.  

Court of Appeal judgment

The Court of Appeal ruled that the question of whether a disclosure is in the public interest depends on the character of the interest being served by it, rather than simply on the number of people sharing it.  

However, that was not to say that the fact that many people share the same interest can never, by itself, convert a personal interest into a public one.  The Court of Appeal refused to rule out the possibility that disclosure of a breach of a worker’s contract may nevertheless be in the public interest (or reasonably regarded as such), if a sufficiently large number of other employees share the same interest.  However, it indicated that employment tribunals should be cautious about reaching such a conclusion as the broad intention when introducing the public interest requirement was to preclude whistleblowing protection for workers making disclosures in the context of private workplace disputes, even in cases where more than one worker is involved.  

Where a disclosure relates to a breach of the worker’s own employment contract (or some other purely personal interest) there may nevertheless be features of the case that make it reasonable to regard disclosure as being in the public interest. The tribunal must take all the circumstances of the particular case into account, but following factors might be of assistance:

• The number of people whose interests are affected – the larger the number the more likely a disclosure will be regarded as in the public interest;
• The nature of the interests affected – a  disclosure of wrongdoing directly affecting a very important interest is more likely to be in the public interest;
• The nature of the wrongdoing disclosed – disclosure of deliberate wrongdoing is more likely to be in the public interest than disclosure of inadvertent wrongdoing; and
• The identity of the alleged wrongdoer – the larger or more prominent the wrongdoer, the more obvious it is that a disclosure about its activities engages the public interest.   

The employment tribunal in this case had identified features, apart from the number of employees affected, that might be said to render disclosure in the public interest:

• the wrongdoing was alleged to be deliberate; 
• the wrongdoing took the form of mis-statements in the accounts to the tune of £2m to £3m (had they been statutory accounts rather than internal ones the disclosure would unquestionably have been in the public interest, but in any event internal accounts feed into statutory accounts); and 
• Chestertons is a very prominent business in the London property market.  

Although it was unclear whether the employment tribunal had fed these factors into its assessment that it was reasonable for Mr Nurmohamed to believe disclosure was in the public interest, these factors would have been sufficient.

Implications

Employers will be disappointed by the lack of certainty provided by the Court of Appeal’s judgment.  The answer to whether a disclosure is in the public interest depends on the character of the interest being served by the disclosure, rather than the number of people whose interests it serves.  Each case will depend on its own facts and there is no blanket rule.  There may be cases (although these will be rare) where a disclosure about an individual grievance may be in the public interest, but equally there may be cases where a disclosure affecting a number of employees will not be in the public interest.