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The Public Interest Test: More than a numbers game

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 [2017] 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.

Background

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 [2002] 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:

  1. The number of individuals whose interests the disclosure served: in this regard the Court noted that while there may be some cases where sheer numbers of individuals within the same organisation sharing the same interest may be sufficient to give rise to a public interest, in most instances there will be additional factors necessarily engaged to render the disclosure in the public interest;
  2. The nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed: the Court drew distinctions between interests which whilst affecting the same number of individuals, concerned disclosures of wrongdoing affecting a very important interest versus those which concern only trivial wrongdoing and similarly those where the effect of the wrongdoing is marginal rather than significant;
  3. The nature of the wrongdoing disclosed: in considering this factor, the Court noted that regard should be had to whether the disclosure was deliberate or inadvertent, holding that where there was deliberate wrongdoing affecting the same number of people as inadvertent wrongdoing, the disclosure of the deliberate wrongdoing was more likely to be in the public interest; and
  4. The alleged identity of the wrongdoer: agreeing with the submissions made on behalf of Mr Nurmohamed, the Court stated that the larger or more prominent the wrongdoer (by reference to the size of its relevant community, for example staff, suppliers and clients), the more obviously a disclosure of its activities may engage the public interest.
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:
  1. The assessment of the worker’s subjective belief (as distinct from the determination of whether that belief is reasonable) is limited to the question of whether or not the individual believed, at the time of making it, that the disclosure was in the public interest and is not dependent on the particular reasons why the worker held that belief at that time. This being the case, a disclosure will not cease to qualify for protection just because the worker seeks to objectively justify it after the event by reference to other specific matters which were not in his mind at the time the disclosure was made.
  2. In assessing the reasonableness of the worker’s belief that their disclosure was in the public interest, the ET must recognise that there is more than one reasonable view and should be careful not to substitute its own view for that of the worker.
  3. It is not necessary for the public interest to have been the predominant motive in making the disclosure and the phrase “in the belief” should be distinguished from “motivated by the belief”.  This notwithstanding, the Court noted that it was difficult to anticipate a scenario in which having reasonably believed the disclosure to be in the public interest, it did not at least form some part of the worker’s motivation in making the disclosure.
Practical Implications

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:

  • Consider how from an evidential point of view the worker may be able to demonstrate that they believed that their disclosure was in the public interest at the point of making it, for example (without limitation) by reference to communications they may have had around the time of the disclosure itself with fellow colleagues or HR/management or from research that they may have undertaken prior to making disclosures.
  • How and where is the worker’s belief in the public interest recorded? Thought should be given to including a detailed explanation of why the worker holds this belief as part of the disclosure itself (whilst reserving rights to add to those reasons) and/or in the event that advice is sought after the disclosure has been made, to creating a contemporaneous record of the reasons for this belief.
  • Careful thought should be given on an ongoing basis (as the matter develops and more information becomes available) to the reasons why the worker says the disclosure is in the public interest, giving consideration to the four specific factors identified by the Court as set out above.
For employers and those acting on their behalf:
  • Consider what updates may be required to those parts of whistleblowing policies dealing with public interest and in particular redirecting employees where they should be using the grievance rather than whistleblowing process, e.g. where the issue is a purely personal matter.
  • Ensure there is adequate training for managers handling whistleblowing processes internally – including in relation to considering whether the question of public interest should form part of the investigation interview in order to seek to understand at an early stage why the worker believes the wrongdoing engages the public interest, including who they believe is affected by the alleged wrongdoing.
  • Finally, remember that even where a disclosure does satisfy the test of public interest, the individual will still need to demonstrate the necessary causation between that protected disclosure and the alleged detrimental treatment that followed.  As such, managers and the wider workforce should be adequately trained to prevent any detrimental action being taken against whistleblowers and where any action or decision on the part of the employer might be perceived as retaliation, ensure HR processes are properly recorded with the real reason (unconnected with the protected disclosure) for that treatment.
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.

CM Murray specialises in employment and partnership law, advising multinational employers, senior executives, LLPs, partnership and senior equity partners on complex employment and partnership law issues.  

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