Whistleblowing – the Court of Appeal clarifies ‘Public Interest Test’

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Posted in:HR and Employment|July 18, 2017 | Join the mailing list

Chesterton Global Ltd (t/a Chestertons) and another v Nurmohamed and another [2017] EWCA Civ 979

Last week the Court of Appeal clarified in the above case 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.

In the above case, Mr Nurmohamed worked for an estate agent’s, Chestertons. On several occasions he made complaints to two directors about manipulation of the company’s accounts. Mr Nurmohamed was subsequently dismissed and brought a claim for unfair dismissal against Chestertons.

Chestertons argued that as the disclosure only concerned a class of 100 employees, it did not satisfy the ‘public interest’ test. The EAT dismissed this and held that disclosure is not required to be of interest to the public at large.

Chestertons appealed to the Court of Appeal who handed down their judgment in favour of Mr Nurmohamed. The Court of Appeal outlined the following as key factors which should be considered in such a case:

The decision dilutes the impact of the inclusion of the ‘public interest’ requirement into whistleblower legislation. Employers should carefully consider whether complaints by employees qualify for protection and, crucially, to ensure that employment decisions for all employees are based on rational criteria.

In summary

In the context of whistleblowing, the public interest is a broad and fluid concept which depends very much on the circumstances of each case. The key factor is not whether the disclosure was in the public interest, but whether the worker’s belief that it was in the public interest was a reasonable one (in the tribunal’s view). Whistleblowers have effectively been given a margin of appreciation as to what the public interest requires

To find out more about the issues raised in this post, or to discuss any queries regarding whistleblowing please do get in touch with Michelle Gray, Head of Employment on michelleg@berg.co.uk or call +44 (0) 161 829 2599.

Find out more on whistleblowing from an employee and employer’s perspective and across different sectors here.
The information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by berg or any of its partners or employees. Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.

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