The Public Interest Test: More than a numbers game
Yesterday the Court of Appeal determined the meaning and application of the phrase making a disclosure “in the public interest” in the test case of Chesterton Global Limited v Mohamed Nurmohamed  EWCA Civ 979.
We, together with Thomas Linden QC and Thomas Kibling, were very pleased to have represented Public Concern at Work (“PCaW”), the leading UK whistleblowing charity, as the intervener in the case.
The Court has held that the essential distinction between a disclosure that is or is not in the public interest is whether it serves the private or personal interest of the worker on one hand or is one which serves the wider interest on the other.
That wider interest will not, however, be met simply because the matter disclosed by the worker affects the interests of others within the same organisation. Nor though is it necessary for the interests served to extend outside the workplace or meet an ethereal quality of public interest by reference to analogous tests in defamation or charities law.
The public interest test is to be determined by employment tribunals on a consideration of all the circumstances of a particular case and the Court endorsed an approach which would have regard to a range of factors, including the number of people whose interests are served; the nature of the interests and extent to which they are affected by the wrongdoing disclosed; the nature of the wrongdoing itself; and the identity of the wrongdoer.
In this alert we discuss the approach adopted by the Court and the important practical implications for workers and employers.
In order to bring a whistleblowing claim a worker (amongst other things) needs to make a “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 of the statutory categories of wrongdoing (section 43B(1) of the Employment Rights Act 1996 (“ERA”). Those categories of wrongdoing include the failure for a person to comply with any legal obligation to which the worker is subject.
Following the EAT decision in Parkins v Sodexho Ltd  IRLR 109 which allowed workers to claim whistleblower protection based on breaches of their own contract of employment, it was widely believed that whistleblowing legislation was being used opportunistically for claims of a private or personal nature, contrary to the original public interest intention behind the legislation. It was in this context that the public interest requirement was inserted by the Enterprise and Regulatory Reform Act 2013 to reverse the unintended effects of the Parkins v Sodexho decision and restore the original intention of whistleblowing legislation.
Assessing whether the public interest test has been met: no “absolute rules”
The facts in this case concerned disclosures made by Mr Nurmohamed, regarding the alleged deliberate misstating by his employer of between £2 and £3 million of costs and liabilities in the company’s internal accounts to reduce the level of commission payable to senior managers, including himself, to the benefit of the shareholders. The Employment Tribunal (“ET”) (confirmed by the decision of the Employment Appeal Tribunal (“EAT”)) found that in circumstances where 100 senior managers were affected by the issues raised in the disclosures made by Mr Nurmohamed, they represented a sufficient group of the public so as to meet the public interest test. We have previously written about the position taken by the respective parties in the present appeal here.
Confirming the approach taken in the earlier decisions, the Court of Appeal found in favour of Mr Nurmohamed on appeal, holding that the ET had not only taken into account the fact that he had made disclosures having in mind the other employees affected, but had also considered the deliberate nature of the misstatement of accounts (of significant sums) and the fact that the employer was a well-known national estate agent.
Setting out the correct approach to be taken by employment tribunals, the Court stated that the question of what is “in the public interest” did not lend itself to “absolute rules”. The Court noted that this was particularly the case where the decisive question under the legislation is not what is in fact in the public interest but rather what could reasonably be believed by the worker to be in the public interest. As such, employment tribunals are required to consider all of the circumstances in determining whether the public interest test has been met by the worker making a disclosure, including the following four factors:
In addition to the above factors, the Court set out a number of important preliminary points to be borne in mind when bringing or defending a whistleblowing claim, including in particular:
Given the wide range of factors that employment tribunals will take into account in determining whether the public interest test has been met, what do workers making disclosures and employers dealing with potential protected disclosures need to bear in mind?
For workers and their advisers:
For employers and those acting on their behalf:
While yesterday’s Court of Appeal judgment has provided welcome clarity that the public interest test is more than a numbers game and should be determined by taking all of the circumstances into account, the “open textured” approach leaves room for a penumbra of interpretations and it seems likely that further cases on the public interest test will follow. Watch this space!
Anna Birtwistle is a partner and Wonu Sanda is a trainee solicitor at CM Murray LLP, specialist employment and partnership lawyers.
Anna and Wonu represented PCaW in the intervention in Chesterton Global Limited v Mohamed Nurmohamed, as well as the recent case of Day v (1) Lewisham and Greenwich NHS Trust & (2) Health Education England regarding the scope of whistleblower protection for junior doctors.
CM Murray LLP represented PCaW in the successful Supreme Court appeal in Clyde & Co LLP v Bates van Winkelhof.
Please contact Anna Birtwistle or Wonu Sanda if you have any questions on whistleblowing issues.