For the first time since the whistleblowing legislation was amended in 2013, to require Claimants to have a reasonable belief that their disclosure was in the "public interest", the Court of Appeal has considered the issue in Chesterton Global Limited v Nurmohamed. The amendment was intended to reverse the effect of the decision in Parkins v Sodexho where the EAT had held that a worker could bring a whistleblowing claim purely in respect of a breach of her or his own contract of employment.
The issue for the Court was whether a disclosure that was in Mr Nurmohamed's private interests could meet the public interest requirement if it served the private interests of other workers as well.
Mr Nurmohamed believed his employer was exaggerating expenses in order to depress profits and therefore reduce commission payments to him and around 100 of his colleagues. Was it reasonable in these circumstances for Mr Nurmohamed to believe the disclosure, which only directly affected a relatively small number of people, was made in the public interest.
At first instance the Employment Tribunal had held that the disclosure was in the public interest because of the number of employees affected, the nature of the wronging doing (which allegedly involved the manipulation of accounts in the amount of £2 - £3 million pounds), and the fact the wrong doing was deliberate. The 100 employees were, according to the Tribunal, a sufficiently large section of the public to engage the public interest. The EAT, who heard the appeal in 2015, found the Tribunal had been entitled to reach that decision. Chesterton's appeal was on the grounds that for a disclosure to be in the public interest it must serve the interests of persons outside the workforce. Public Concern at Work (who had intervened in the case), on the other hand, progressed an argument that a disclosure could be in the public interest if it was in the interests of anyone else, in addition to the worker making the disclosure.
The Court of Appeal rejected both these positions finding that whether a disclosure was in the public interest depends on the character of the interest served by it rather than the number of people sharing it. Where the disclosure relates to a matter which is personal to the Claimant there may be features of the case that still make it reasonable to regard the disclosure as being in the public interest. Factors that may be relevant in assessing that include:-
- the numbers in the group whose interests the disclosure served;
- the nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed;
- the nature of the wrongdoing disclosed; and
- the identity of the alleged wrongdoer.
In this case, the Court of Appeal dismissed the appeal and the disclosure was held to be in the public interest since it served the interests of other workers and involved deliberate wrongdoing by way of financial misstatements at a significant level.