Whistleblower Protection - What's the 'Public Interest'?

In order to qualify for whistleblower protection, an individual must show that they have made a qualifying disclosure. One of the requirements of a qualifying disclosure is that the employee reasonably believes that the disclosure is made in the 'public interest'.

In Chesterton Global Ltd v Nurmohamed, Mr Nurmohamed and approximately 100 of his colleagues were remunerated partly by way of commission payments. Mr Nurmohamed was concerned that his employer was manipulating its accounts by exaggerating expenses and overheads in order to suppress profit. This affected his commission payments and he made the disclosure largely in his own self-interest.

Both the Employment Tribunal and the Employment Appeal Tribunal found that Mr Nurmohamed's disclosure was in the public interest, notwithstanding that:

• it was made largely Mr Nurmohamed's self-interest
• it affected only a relatively small number of individuals, all employed by the same employer

The Court of Appeal upheld this decision.

In considering whether the public interest test was met, the Court of Appeal rejected both the extremely narrow interpretation proposed by the Company, and the extremely wide interpretation proposed by Mr Nurmohamed. The Court of Appeal noted that Parliament had not legislated on the point and accordingly declined to set out any hard or fast rules. However, it stated that the following factors may be relevant in determining whether the public interest test had been met:

• how many people the disclosure serves (ie. more likely where a larger group affected)
• what interests are affected and how much they are affected by the disclosure (ie. more likely where an important interest directly affected)
• what the disclosed wrongdoing is (ie. more likely where deliberate as opposed to inadvertent wrongdoing)
• who the alleged wrongdoer is (ie. more likely where the wrongdoer is a larger or more prominent entity/person)

Interestingly, in looking at the question of the employee's reasonable belief, the Court of Appeal stated that, as reasonableness is judged objectively, it is open to a tribunal to find that a disclosure was reasonably in the public interest on grounds which the worker did not have in mind at the time.

Best Practice

• ­­This case confirms that the public interest test has a fairly broad interpretation, although whether it has been met in each case is heavily fact dependent. It is clear, however, that the disclosure being motivated by selfish interests does not necessarily preclude it from being in the public interest.
  
  
• You should ensure that you have a robust whistleblowing policy and that systems are in place to identify protected qualifying disclosures.

For more information, please contact Charlotte Williams, in our Employment team, on 0117 314 5219.