Whistleblowing and the "public interest" test
The Court of Appeal has held in Chesterton Global Ltd (t/a Chestertons) and Anor v Nurmohamed that an estate agent's complaints about the manipulation of accounts, which potentially adversely affected the bonuses of 100 senior managers, amounted to a protected disclosure in the public interest.
While he was principally concerned with his own position, Mr Nurmohamed did have other senior managers in mind and, as a section of the public would be affected, the public interest test was satisfied.
The words "in the public interest" were inserted into whistleblowing legislation by the Enterprise and Regulatory Reform Act 2013 for disclosures made on or after 25 June 2013. The public interest test was introduced to reverse the effect of a case called Parkins v Sodhexo Ltd so that a worker cannot rely on a breach of their own employment contract, where there are no wider public interest implications.
Mr Nurmohamed was employed as a senior manager. Following changes to Chesterton's commission structure, he made disclosures to the area director and the HR director on three separate occasions in which he complained about manipulation of the company's accounts which he believed had an adverse effect on commission income. The effect was to make the company appear more profitable, to the benefit of its shareholders.
He was dismissed from his employment and brought various claims against Chestertons. The tribunal found that he had been automatically unfairly dismissed and that he had been subjected to detriment on the grounds that he had made protected disclosures. The tribunal noted that there was no authority on the meaning of "in the public interest" and held that a disclosure did not have to be of interest to the entirety of the public, as it was inevitable that only a section of the public would be directly affected by any given disclosure.
On appeal, the Employment Appeal Tribunal (EAT) held that the tribunal's reasoning had been correct and that there was no need for the tribunal to determine objectively whether a disclosure is of real interest to the public. The public interest test can be satisfied where the basis of the public interest disclosure is wrong and/or there was no public interest in the disclosure being made, provided that the worker's belief that the disclosure was in the public interest was objectively reasonable.
The Court of Appeal refused Chesterton's appeal, agreeing with the tribunal and EAT.
The decision in Chesterton shows that the public interest requirement is perhaps less onerous than it was intended to be. Provided that an employee can show that a breach of their contract affects a sufficiently large number of employees sharing the same interest, they can potentially pass the "public interest" test.