Whistleblowing – Court of Appeal considers ‘public interest’ test
20 July 2017 #Whistleblowers
The Court of Appeal has handed down its much-awaited decision in the case of Chesterton Global v Nurmohamed and, unfortunately for employers, it does not provide the assistance they were hoping for.
Mr Nurmohamed, a manager with a large estate agent, complained that the company was manipulating its accounts to reduce the profit based commission payments for around 100 senior managers (including himself). Shortly after making the complaint, Mr Nurmohamed was dismissed and brought claims of unfair dismissal and whistle blowing.
The Tribunal found in Mr Nurmohamed’s favour. Recognising the lack of authority on the meaning of ‘in the public interest’, it held the disclosure to be in the interest of 100 senior managers, and that that was a sufficient group to amount to being a matter in the public interest.
Chesterton’s appeal to the EAT and, most recently, to the Court of Appeal (CA) have been unsuccessful. In reaching its decision, the CA considered the question of whether the public interest test is dependent upon the number of individuals affected. It held that whether a disclosure is in the public interest depends on the character of the interest served by it rather than simply on the number of people sharing that interest. Relevant factors that should be considered by the tribunal are:
- 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
On the question of motivation, the CA held that a disclosure can be in the public interest even if the worker is mostly motivated in making it. It also confirmed that a worker’s belief that the wrongdoing is in the public interest must be genuine and held that disclosure will not cease to qualify simply because the worker justifies his belief with information that becomes available after the disclosure is made.
Whilst each case will depend on its own facts, this case provides some guidance as to what employers should consider when dealing with complaints in case they may be qualifying disclosures.
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