A crucial factor in determining whether a “protected disclosure” has been made is whether that disclosure was “in the public interest”. The case of Chesterton Global Ltd & Anor v Nurmohamed focussed upon how the “public interest” is defined and concluded that what matters is whether the person making the disclosure had a reasonable belief that the information disclosed was in the public interest, and not whether the disclosure was as a matter of fact in the public interest.
Mr Nurmohamed was a Director at the Mayfair branch of Chestertons, the well-known estate agents. In 2013 Chestertons introduced a new commission structure. Mr Nurmohamed was unhappy that this new commission structure had been introduced as he believed it would have a significant detrimental impact on his income.
In August, September and October 2013 Mr Nurmohamed made three alleged protected disclosures regarding the fact that he was concerned that there were discrepancies between the profit-loss accounts of the Mayfair office and the corporate figures, and that he believed that the accounts were being manipulated for the benefit of the shareholders to the detriment of approximately 100 senior managers.
Mr Nurmohamed subsequently made a claim in the Employment Tribunal that he had been subjected to detriments and dismissed because he had made the alleged protected disclosures. In order to succeed with his claim, Mr Nurmohamed had to show the following:
- That there had been disclosure(s) of information;
- That in the reasonable belief of the work the disclosure of information tended to show that there had been (or would be) a breach of a legal obligation, that a criminal offence had been (or would be) committed, that a miscarriage of justice had occurred (or would occur), that the health of safety of any individual had been endangered (or would be), that the environment had been damaged (or would be), or that information tending to show that any of the above had been deliberately concealed (or was likely to be); and
- That in the reasonable belief of the worker that the disclosure of the information was in the public interest
The Employment Tribunal concluded that the points 1 and 2 above were satisfied: they concluded that Mr Nurmohamed had made disclosures of information and that these disclosures had contained information tending to show that there had been a breach of a legal obligation or that there was likely to be a breach of a legal obligation.
The Tribunal then went on to consider whether the disclosure of information had been “in the public interest”, concluding that following the wording of the statute the disclosure did not need to be in the public interest per se but that the worker simply had to have a reasonable belief that the disclosure of information was in the public interest. In any event, the Tribunal concluded that the disclosures were in the public interest as they affected 100 persons and that this was a significant enough number of people to render the disclosure “in the public interest”.
The Tribunal went on to conclude that Mr Nurmohamed had been subjected to detriments and dismissed because of his protected disclosures.
Chesterton’s appealed this judgment to the Employment Appeal Tribunal on the grounds that (1) the he Tribunal made an error of law in concluding that disclosures made in the interest of the 100 senior managers was to a sufficient group of the public to amount to being a matter in the public interest; and (2) it was for the Tribunal to objectively determine (not subjectively) whether or not the disclosures were of real public interest, and the Tribunal had failed to do this.
The Employment Appeal Tribunal rejected both grounds of appeal, upholding the judgment of the Employment Tribunal. The EAT concluded that the question of whether a disclosure is made in the public interest is subjective to the worker and depends upon whether they have a reasonable belief that the disclosure was in the public interest.
What does this mean for me
If you are thinking of ‘blowing the whistle’ on your employer then you will need to do one of two things (or, preferably, both):
- Demonstrate that any “protected disclosure” that you make is objectively in the public interest; and/or
- Make sure that you impress on your employer that you have a belief that any disclosure of information that you make is in the public interest, and that this belief is reasonable
As always, put your views on these issues in writing to your employer so you don’t have to argue over them at a later date. Don’t rely on having to prove that you had conversations with third parties – this can sometimes be tricky.
If you’re an employer, then the difficulty here is that there has been a widening of the law which potentially restricts your ability to defend a ‘whistleblowing’ case. However, and as always, there are various layers of defence open to an employer in a whistleblowing case, and the employer can still exercise those.
Why is this case significant?
This case is important as it gives employees (and their representatives) greater scope to argue that a disclosure was “in the public interest”, and therefore a protected disclosure. All the worker needs to do is to show that there has been a “qualifying disclosure” and that the worker had a belief that the qualifying disclosure was in the public interest. What is essential is that the worker’s belief must be reasonable.