The Court of Appeal has heard the appeal in the important whistleblowing case Chesterton Global Ltd (t/a Chesterton Humberts) and another v Nurmohamed.
This is a key case in terms of considering when a disclosure is “in the public interest”, a key hurdle for claimants seeking to demonstrate that a disclosure is protected.
The appeal was heard in the Royal Courts of Justice on 8 June.
Whistleblowing charity Public Concern at Work intervened in the case and was able to make representations before the Court of Appeal.
In June 2013, whistleblowing laws were changed to require that, to be protected, a worker must have reasonably believed that he or she was making the disclosure “in the public interest”.
The change was intended to prevent claimants from misusing whistleblowing protection in relation to the disclosure of matters relating to their own contract of employment.
Since this change to the law, there has been debate as to the scope of the phrase “in the public interest”.
Chesterton was the first appeal case to consider the issue.
Mr Nurmohamed, a manager with a large estate agent, raised concerns about discrepancies with how his commission under a new commissioning structure was calculated.
He contended that the discrepancies were deliberate and that the accounts were being manipulated by management to the benefit of shareholders, thereby reducing the amount that he and more than 100 other managers would receive by way of commission.
The employer subsequently dismissed Mr Nurmohamed.
He brought an unfair dismissal claim in the employment tribunal, including an allegation that the dismissal was automatically unfair because he had made a protected disclosure, and that he had been subjected to detriments for making a protected disclosure.
Both the employment tribunal and EAT accepted that he reasonably believed that the disclosure was “in the public interest”.
They were satisfied that, even though Mr Nurmohamed was primarily thinking about his own commission, a “section of the public”, here the group of 100 or so managers, were also affected by the issue.
Public interest test: other cases
Morgan v Royal Mencap Society The EAT held that a tribunal was wrong to strike out a claim on the basis that an employee’s concerns about cramped working conditions were not “in the public interest”.
Underwood v Wincanton plc The EAT held that the “public interest” requirement could be satisfied where the disclosure relates to a relatively small number of workers.
Newman v Riverside Building Supplies Ltd A tribunal struck out whistleblowing claims brought by an individual who argued that he made a protected disclosure when he complained that his line manager had been rude to a colleague.
In the appeal on 8 June, the Court of Appeal heard from the employer’s representatives that the tribunal was wrong to concentrate on the number of workers affected.
The employment tribunal should have looked more closely at the nature of the disclosure, and not be distracted by the number of people affected.
According to the employer’s lawyers, Mr Nurmohamed’s concerns were more akin to a collective grievance, rather than something that was of wider “public interest”.
However, Mr Nurmohamed’s representatives maintained that a disclosure should count as being “in the public interest” if it raises matters that are more than purely personal, and the issues are of “some importance” to at least one other person.
They argued that a narrow “public interest” test could have the “chilling effect” of deterring workers from making disclosures in the first place.
Mr Nurmohamed’s case was that it was “blindingly obvious” that he reasonably believed that he was making the disclosure “in the public interest”, given the number of managers affected, the millions of pounds at stake, and his assertion that there had been deliberate wrongdoing.
Public Concern at Work, in its submissions at the end of the hearing, highlighted that whistleblowing laws encourage workers to speak out over wrongdoing in the workplace, and whistleblowers need to know that they will be protected when they raise concerns.
According to the charity, employers’ whistleblowing policies are formulated to encourage workers to speak out whenever they see wrongdoing, and policies do not typically tell workers to raise concerns only if they are “in the public interest”.
It said that it would be wrong for a worker who has spoken out after being encouraged to do so by his or her employer to find out later that they are not protected.
XpertHR principal employment law editor Stephen Simpson, who attended the Court of Appeal hearing, commented: “In terms of significance to UK employment law, this is arguably the biggest case that the Court of Appeal will hear in 2017.
“It is significant that Public Concern at Work has intervened. Its position is clear: make the test too stringent, and whistleblowing protection could be severely restricted.”
Simpson goes on to say: “Perhaps the best argument for a liberal approach as to what counts as ‘in the public interest’ is that an employer’s typical policy on whistleblowing encourages workers to raise concerns, and it would unfair for a worker to find out later that they are not protected because their disclosure has not reached a sufficient level of importance.”
Judgment was reserved at the end of the Court of Appeal hearing. It is likely to be a few months before the final judgment is delivered.
The Court of Appeal judgment will be binding on employment tribunals and the EAT.
Employment Rights Act 1996 – section 43B(1)
Disclosures qualifying for protection
“…a ‘qualifying disclosure’ means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following:
a. that a criminal offence has been committed, is being committed or is likely to be committed;
b. that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject;
c. that a miscarriage of justice has occurred, is occurring or is likely to occur;
d. that the health or safety of any individual has been, is being or is likely to be endangered;
e. that the environment has been, is being or is likely to be damaged; or
f. that information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed.”