The long running case concerning the requirement for a protected disclosure to be ‘in the public interest’ has been heard in the Court of Appeal. The judgment, from the highest court to consider this area, has provided some clarity for employers.
In Chesterton Global Ltd and anor v Nurmohamed, a director of the business raised a number of concerns regarding discrepancies and deliberate manipulation of the company’s internal accounts. He was concerned because these accounts were used to calculate his commission payments and the commission payments of around 100 other senior managers. After being dismissed, the claimant brought an unfair dismissal on the basis that he had made protected disclosures.
The employment tribunal decided the public interest requirement does not need the entire public to be interested in the disclosure. Instead, it was enough for a section of the public to be affected, rather than solely the individual involved. In this case, as the disclosure was in the interests of 100 seniors managers this was a sufficient group to be in the public interest.
The employer appealed to the EAT but this was dismissed.
The case was appealed again to the Court of Appeal on the same issue. The Court of Appeal clarified that where the disclosure relates to a breach of the individual’s own contract of employment, a consideration of all the circumstances is required to consider whether the disclosure can be regarded as being in the public interest. Although hesitant to set out any hard rules, the Court did state that the following relevant factors should be used to determine this issue:
• The numbers in the group whose interests the disclosure served
• The nature of the interests affected and the extent to which they were affected by the wrongdoing
• The nature of the wrongdoing disclosed
• The identity of the alleged wrongdoer
Applying these factors to this case, the disclosure concerned deliberate wrongdoing in the form of misstatement of accounts of around £2-3million. Although these accounts were internal, they would contribute to the statutory accounts for a substantial and prominent private company. As such, the employment tribunal was correct to find that the disclosure was made in the public interest and the appeal was dismissed.
What this means for employers:
• This decision removes the uncertainty around the definition of ‘in the public interest’. Since the original tribunal claim, numerous cases have followed this reasoning so this decision confirms this is the correct application of the law.
• The individual need only have a reasonable belief that the disclosure was in the public interest – it is not required to be in the public interest, so long as the belief that it was was genuine and reasonable. This is a subjective belief that will be hard for employers to disprove.
• The case confirms that the number of people affected will not be the only consideration when deciding this issue. Instead, other factors, such as the identity of the whistleblower and the nature of the wrongdoing, i.e. is it deliberate or not, will be relevant.