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What is in the “public interest”?

The Court of Appeal in the case of Chesterton Global Ltd and another v Nurmohamed and another has considered the meaning of “public interest” when assessing protection for whistleblowers.

The Law

A worker is protected against detriment or dismissal if they have made a qualifying disclosure under whistleblowing legislation. A qualifying disclosure is one which, in the reasonable belief of the worker making it, shows one (or more) of the six specified types of wrongdoing has taken place, is taking place or is likely to take place and that the disclosure is in the public interest.

Background

Mr Nurmohamed (“the Claimant”) was a senior manager at Chesterton Global Ltd (“Chestertons”). He made several complaints alleging that the company was deliberately misstating its costs and liabilities to reduce the profit based commission payments for around 100 senior managers, including his own.

An Employment Tribunal held that the Claimant’s dismissal had been unfair as it had been a result of his disclosures. When considering the public interest element, the Tribunal concluded that the Claimant had a reasonable belief that the disclosures were in the interest of around 100 senior managers and this was sufficient to amount to being a matter in the public interest.

Chestertons argued the public interest test wasn’t met because it was essentially a complaint about his own employment contract. However, the Employment Appeal Tribunal upheld the first instance decision and Chestertons made a further appeal to the Court of Appeal.

Court of Appeal Decision

The Court of Appeal dismissed the appeal and upheld the original decision of the Employment Tribunal that the disclosure satisfied the public interest test. To assess whether a disclosure meets the public interest test a tribunal should consider:

  • 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.

To help tribunals weigh up the reasonableness of a worker’s belief that disclosure was in the public interest the Court of Appeal outlined four factors to consider:

  • 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.
  • The identity of the alleged wrongdoer.

Comment

Each case will depend on its own facts and whether it is reasonable to believe that a matter is in the public interest will depend on the individual circumstances. This case does not provide any certainty but at least provides some guidance as to what an employer (and tribunal) should consider when dealing with workers complaints in case they may be qualifying disclosures. This is particularly important for employers as whistleblower protection gives individuals enhanced protection in law including unlimited awards of compensation.

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