The Court of Appeal has provided welcome guidance on the meaning of the public interest test which was first introduced in June 2013 with a view to taking the legislation back to its original purpose of encouraging disclosures to be made in the public interest. Prior to the amendment, there had been concerns amongst practitioners that whistleblowing complaints were being used as a means of advancing private disputes about individual employment contracts rather than matters of public concern (Chesterton Global Ltd and anor v Nurmohamed).
Mr Nurmohamed had made disclosures that internal accounts at Chestertons estate agents were being manipulated with the result that 100 senior managers, including him, were being unfairly treated in relation to bonus. The Employment Tribunal and the Employment Appeal Tribunal agreed that Mr Nurmohamed had a reasonable belief that his disclosures tended to show wrongdoing and were made in the public interest. You can read our report on the Employment Appeal Tribunal decision here.
Chestertons appealed to the Court of Appeal. As the public interest amendment had not previously been considered by the Court, the charity, Public Concern at Work (PCAW), were granted permission to intervene. Three concepts of the public interest were advanced before the Court of Appeal.
Chestertons argued that Mr Nurmohamed had only succeeded with his claim because he was in the same position as 100 other senior managers. In their opinion, the “mere multiplicity” of complaints was not enough; the significance of the disclosure had to “extend outside the workplace”. On that analysis a disclosure about unpaid holiday would not qualify because while it might affect a number of workers, the significance of the non-payment would not have wider implications for the public. By contrast, the fact that doctors might be working excessive hours would have a wider public interest because this could impact on the health and safety of patients.
PCAW argued that only a disclosure which was solely personal in nature would not qualify. They argued that a disclosure would be made in the public interest if it was “in the interests of anyone else besides the worker making the disclosure”.
Court of Appeal decision
The final approach put forward on behalf of Mr Nurmohamed, with which the Court of Appeal agreed, took a position between those two extremes. In essence, it was necessary to look at all the surrounding circumstances rather than numbers alone and/or whether people outside the workplace were affected and the following factors would be relevant:
- the numbers in the group whose interests the disclosure served;
- the nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed;
- 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; and
- the identity of the alleged wrongdoer (including its size, public prominence etc)
Although each factor needed to be considered carefully, the larger the number of workers affected, the more likely it was that the disclosure would be made in the public interest.
Applying the guidance outlined above to Mr Nurmohamed’s case, the Court of Appeal upheld the finding that his disclosures were made in the public interest. In addition to the number of employees affected, the complaint concerned deliberate misstatement of accounts in the sum of around £2 - 3 million and involved a prominent business in the London property market.
This case demonstrates that the public interest test does not represent a significant hurdle for Claimants and that there are no absolute rules, particularly in circumstances where the reasonable belief of the worker making the disclosure is what matters.
Where the disclosures are made to a large employer, affect a significant number of people and disclose wrongdoing that is deliberate, it may be more cost effective to acknowledge that this element of the whistleblowing test is satisfied and to focus on other aspects of the complaint such as whether the reason or principal reason for the dismissal was the disclosure.