REUTERS | Pilar Olivares

Whistleblowing protection: a fluid approach

The Court of Appeal has considered the meaning of the words “in the public interest”, which were added to whistleblowing legislation by the Enterprise and Regulatory Reform Act 2013. While guidance was provided to employment tribunals, it is clear that a fluid approach should be adopted in considering what is meant by “a reasonable belief in the public interest”.

Court of Appeal decision

In Chesterton Global Ltd and another v Nurmohamed and another [2017] EWCA Civ 979, the claimant was employed by Chesterton Global Ltd as director of its Mayfair office. Following his dismissal, he alleged that he suffered detriments and had been dismissed because he had made protected disclosures. At first instance, Mr Nurmohamed was found to have made disclosures that accounts had been incorrectly stated to the benefit of shareholders, affecting the commission of over 100 senior managers including himself.

The employment tribunal concluded that Mr Nurmohamed made the disclosures in the belief that it was in the interest of 100 senior managers, which was a sufficient group of the public to amount to being in the public interest. Chesterton appealed the decision. At the EAT, Supperstone J dismissed the appeal, holding that the issue was not whether the disclosure per se was in the public interest but whether the worker making the disclosure had a reasonable belief that the disclosure was being made in the public interest. Chesterton appealed again.

At the Court of Appeal, Underhill LJ confirmed the approach of the EAT. He emphasised that there may be more than one reasonable view as to whether a disclosure was in the public interest. Consequently, a tribunal should avoid substituting its own view of whether the disclosure was in the public interest for that of the worker. While the worker must have a genuine and reasonable belief that the disclosure is in the public interest, that does not have to be their predominant motive in making it.

A particular issue which arose in the case was whether a disclosure which is in the private interest of the worker becomes in the public interest simply because it serves the private interests of a number of other workers as well. Underhill LJ held that, where a disclosure relates to a breach of the worker’s own contract of employment, there may still be factors which make it reasonable to regard the disclosure as being in the public interest. The following factors will be relevant to this assessment:

  • The number of workers affected.
  • The nature of the interests affected.
  • The nature of wrongdoing disclosed.
  • The identity of the alleged wrongdoer.

In the context of Mr Nurmohamed’s case, it was noted that in addition to the number of managers affected in Mr Nurmohamed’s case, it was also noted that:

  • The disclosures were said to be of deliberate wrongdoing.
  • The alleged wrongdoing was sizeable.
  • The employer was a substantial and prominent business.

The appeal was dismissed.

A fluid approach to whistleblowing claims

The Court of Appeal’s warning that tribunals should not substitute their own view for that of the worker in considering whether a disclosure is in the public interest indicates that the test remains a low threshold for workers. That said, there are still evidentiary hurdles for workers to overcome. While their reasons for making a protected disclosure are not strictly relevant to the legal issues, if a worker cannot give credible reasons for why they thought at the time that the disclosure was in the public interest, this may cast doubt on whether they really thought so at all.

It is confirmed that a private workplace dispute may be the subject of a protected disclosure, provided that a worker reasonably believes the disclosure to be in the public interest. This means that employers will need to be cautious if employees raise complaints or grievances which concern other colleagues or management as this could amount to a protected disclosure. However, the guidance suggests that the numbers of those affected may not be sufficient to render a private interest into a public one.

Overall, the clarity provided by the Court of Appeal’s guidance is welcome, given that many practitioners were uncertain as to what a “reasonable belief in the public interest” might look like following the EAT’s decision. That said, the decision reinforces the point that what amounts to a reasonable belief in the public interest is a highly fact-sensitive issue. This reflects the reality that issues which are reasonably regarded as being in the public interest evolve over time. Any further developments in the case law will undoubtedly be interesting to watch.

Devereux Marianne Tutin

Leave a Reply

Your email address will not be published. Required fields are marked *