Whistleblowing: Public Interest Requirement
13 July 2017
Can a disclosure which is in the private interest of the worker making it become in the 'public interest' because it also serves the (private) interests of other workers as well?
Potentially yes, held the Court of Appeal in Chesterton Global Ltd v Nurmohamed, but it will be heavily dependent on the facts.
Under the Employment Rights Act 1996, the definition of a qualifying disclosure for whistleblowing purposes includes that "in the reasonable belief of the worker making the disclosure, [the disclosure] is made in the public interest..."
Mr Nurmoahmed was, along with about 100 colleagues, paid commission at work. He believed his employer was exaggerating expenses to depress profits and thus reduce commission payments, in total by about £2-3m. That was an allegation capable of being a protected disclosure, if he fell within the provision that he had to reasonably believe it was in the public interest. The question: was a disclosure about a commission structure affecting only a small(ish) group of salesman something which could reasonably be believed to be in the 'public interest'?
The Court of Appeal held yes, stating the mere fact something is in the worker's private interests does not prevent it also being in the public interest. It will be heavily fact-dependent, but the court adopted four criteria proposed by James Laddie QC as a useful starting point (para 34). But the court sounded a note of caution (para 36) that tribuals should be slow to find that matters affecting just people within a workforce is a 'public interest' disclosure, albeit often the larger the workforce, the more often there will be other factors present which might be enough to push a disclosure over into the public interest.
On a separate point, the Court of Appeal made it clear that it was acceptable, as often happens, for the employee to rationalise the grounds for his belief after the event. All that matters is that his (subjective) belief about the disclosure being in the public ininterest was (objectively) reasonable.
With thanks to Daniel Barnett’s employment law bulletin for providing this update.