Whistleblowing: What Does ‘In the Public Interest’ Actually Mean?

In the case of Chesterton Global Ltd and another v Nurmohamed, the Court of Appeal has further refined the test for determining whether a protected disclosure is considered to be ‘in the public interest’ or not. The Court confirmed that a disclosure does not need to be in the interest of the public at large in order to qualify for whistleblower protection; a disclosure can concern only a small group of people. 

This landmark decision has important implications in the field of employment law. It confirms that the concept of public interest should be interpreted widely but still leave flexibility for the courts and tribunals to decide if a disclosure meets the test on a case by case basis.  

Key Points

- Since 2013, it has been a requirement for a worker making a complaint that their employer has done something unlawful under whistleblowing legislation to have a reasonable belief that it is made in the public interest. This change was introduced in an attempt to prevent workers bringing whistleblowing claims relating to breaches of their own employment contracts. 

- As a result of this case, when presented with whistleblowing claims tribunals should now focus on the reasonableness of an individual’s belief that the disclosure was in the public interest, rather than the abstract definition of ‘public interest’. The particular reasons for a worker's belief are not material and it does not matter if what is alleged is subsequently proven to be wrong. 

- A worker may still have the protection of whistleblowing legislation in circumstances where their complaints are personally motivated. 

- Whilst the decision does not provide certainty for employers, it does offer some useful guidance as to what ‘in the public interest’ actually means in practice, and what is required to pass the test. It also demonstrates the importance of ensuring that robust whistleblowing policies are in place. 

- Given the outcome of this decision, a prudent approach for employers to take may be to treat all disclosures made by workers which address more than mere private issues as protected disclosures pending further investigation.  

Case Details

Mr Nurmohamed was a senior manager at Chestertons estate agents who made repeated complaints to senior directors of the company about discrepancies in the company’s monthly accounts. Mr Nurmohamed claimed that the accounts were being misrepresented to artificially repress profit and that, as a result, this adversely impacted the amount of commission due to him (together with approximately 100 other managers across the company).  

Shortly after making these complaints, Mr Nurmohamed was dismissed. After bringing various employment claims in the Employment Tribunal, he was found to have been unfairly dismissed on the grounds of him having blown the whistle.  Chestertons appealed to the Employment Appeal Tribunal on the grounds that by expressing concerns about his own commission income, Mr Nurmohamed’s disclosures were not ‘in the public interest’ as required by whistleblowing legislation. The Employment Appeal Tribunal dismissed the appeal and Chestertons subsequently appealed to the Court of Appeal.

The Court of Appeal again dismissed Chestertons’ appeal, rejecting its argument that in order for a disclosure to meet the ‘public interest’ test, others outside of the workplace must be affected by the disclosure in some way.  

The Court of Appeal held that when a disclosure relates to an individual’s own contract of employment, there may be circumstances which make it reasonable to regard the disclosure as being in the public interest, and it will be for a tribunal to decide based on the particular circumstances of the case whether the public interest requirement is met. Whilst this is likely to include consideration of the number of those whose interests the disclosure protected, it will also require consideration of the nature of and extent to which those interests are affected by the wrongdoing disclosed, the nature of the wrongdoing disclosed and the identity of the alleged wrongdoer (the larger or more prominent the wrongdoer, the more likely the disclosure will be considered to be in the public interest).  

The Court held that the extent of the alleged wrongdoing (i.e. the deliberate misrepresentation in the accounts of between £2 million and £3 million), together with the fact that Chestertons was a well-known national firm of estate agents and the fact that the alleged wrongdoing affected a significant number of employees all meant that the Employment Tribunal and Employment Appeal Tribunal had not been wrong to find that the disclosures were made in the public interest.  

It remains to be seen whether Chestertons will apply for leave to appeal to the Supreme Court.