Whistleblowing: the "public interest” test
Friday 21st July 2017
The CA has now given judgment in Chesterton Global Ltd v Nurmohamed. Mr Nurmohamed raised concerns about the manipulation of CG’s accounts, which he alleged inflated costs by an estimated £2-3 million to artificially suppress profitability in order to reduce Mr Nuromohamed commission payments and those of another 100 senior managers. He was subsequently dismissed and claimed automatic unfair dismissal for having made a protected disclosure.
Since 2013 whistleblowers need to show that they reasonably believe their disclosure is “in the public interest”. This change was intended to prevent workers from relying on the whistleblowing provisions when complaining about private matters, such as their own employment contracts.
CG argued that employees sharing the same personal interest could never convert that personal interest into a public one.
The CA decided that the public interest test did not lend itself to absolute rules. However, the test did not exclude the possibility that a disclosure about a breach of an individual’s contract could also be in the public interest purely on the basis that a significant number of employees shared that same interest. The CA did, however, stress the importance of considering the character of the interest and not simply relying on the numbers of people sharing that interest.
Agreeing with both the ET and the EAT, the CA found that the disclosure made by Mr Nuromohamed was in the public interest. The CA referred to the factors put forward on behalf of Mr Nuromohamed as a potentially useful tool when considering whether a disclosure is the public interest. These factors included the number of individuals affected; the nature of the interest and the extent to which they are affected; the nature of the alleged wrongdoing and the identity of the alleged wrongdoer.
The CA noted that the ET had focused on the number of employees affected, but it had also identified multiple factors which made it reasonable to consider the disclosure was in the public interest, significantly that the wrongdoing involved large amounts of money and the manipulation of the accounts was alleged to be deliberate.
All information in this update is intended for general guidance only and is not intended to be comprehensive, or to provide legal advice.