Whistleblowing: what is ‘in the public interest’?

For those of you who came to our ‘HR Tips and Traps’ seminar in March 2017, you may recall the case of Chesterton Global Limited v Nurmohamed, which gave some guidance on the requirement for a whistleblowing disclosure to be ‘in the public interest’.

Mr Nurmohamed complained to his employers, the estate agency Chestertons, that he was being underpaid commission because of exaggerated expenses being claimed by the employer in order to depress profits and reduce commission payments. Mr Nurmohamed said that this did not only affect him but also about 100 of his colleagues and when he brought a whistleblowing claim, the question that arose was whether or not his disclosure was ‘in the public interest’ which is a relatively new requirement for a whistleblowing claim.

The Employment Tribunal held that his complaint did amount to a disclosure which was being made ‘in the public interest’ and that decision was upheld by the Employment Appeal Tribunal. Chestertons then appealed to the Court of Appeal and in a Judgment handed down yesterday, the Court of Appeal has dismissed Chestertons’ appeal.

Whilst Chestertons’ appeal was unsuccessful and Mr Nurmohamed’s disclosure about wrongdoing relating to 100 members of staff was found to be in the public interest, the Court of Appeal sounded a note of caution about the circumstances in which a complaint about an individual ‘private interest’ (which might affect a number of employees of the same employer) could amount to being within the public interest for the purposes of amounting to a protected disclosure. What the Court of Appeal said quite clearly was that it is not just about the numbers of people affected which would tip it into being ‘in the public interest’. Less helpfully, the Court of Appeal said that ‘it depends on the facts’  but when considering the facts, the Tribunal should have in mind the following:

1. the numbers who are affected by the wrongdoing alleged
2. the nature and extent of the interest which has been affected (for example, is it an important interest like pay or a more trivial interest)
3. the nature of the wrongdoing disclosed, particularly whether or not it is deliberate wrongdoing or inadvertent wrongdoing
4. the identity of the alleged wrongdoer; the principle here is that the larger or more prominent the employer, the more likely it is that any wrongdoing by it which affects many employees, would satisfy the public interest test. A good example being the NHS or the Police etc.

In short therefore, we have some further guidance but not as much as might have been hoped. The Court of Appeal Judgment does make it clear that satisfying the public interest test to trigger whistleblowing protection is a higher bar than the original Tribunal decision in Chestertons might have suggested.

If you have any questions regarding this topic or any employment issue, please contact Head of Employment, Linky Trott, or any member of the Edwin Coe Employment team.

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