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What is meant by ‘in the public interest’ for the purposes of whistleblowing protection?

CM Murray’s Anna Birtwistle and Wonu Sanda are in the Court of Appeal today in the test case of Chesterton Global Limited and anor v Nurmohamed representing Public Concern at Work (PCaW) as intervener.

The important question to be determined by the Court is whether a narrow or wide construction should be applied to the wording of the statute, which requires that when blowing the whistle, the individual does so in the reasonable belief that the disclosure “is made in the public interest”.

The public interest test was inserted into the legislation in 2013 and was not accompanied by any statutory guidance.  The intention of that new test was to reverse the position created by an earlier case (Parkins v Sodexo) which determined that individuals could blow the whistle in respect of breaches of legal obligations owed to them personally (i.e. which may not be in the wider public interest), leading to what many people believed was a misuse of whistleblowing protections.

The Appellants in this case, Chesterton Global Limited, have appealed against the Employment Appeal Tribunal’s wide construction of the public interest test which, confirming the Employment Tribunal’s approach, provided that the test could not have been intended to protect only those disclosures that were of interest to the entirety of the public and therefore concluded that where a section of the public would be affected (as opposed to simply the individual blowing the whistle), this would be sufficient for the matter to be deemed to be in the public interest.  In the present case, 100 senior managers were affected by the issues raised in the disclosures made by Mr Nurmohamed and they were found to represent a sufficient group of the public.

Chesterton Global Limited have appealed against the EAT decision, arguing instead that a narrow interpretation should be applied so as to require that the disclosures themselves be objectively of real public interest and have something in their nature of relevance to the public.

PCaW has intervened in this case to bring to the attention of the Court a wider perspective than that of the parties and will advocate for a generous interpretation of the public interest test which does no more than exclude from whistleblowing protection those cases where a worker is acting purely out of self-interest.  As such, submissions will be made that it should be sufficient that a worker believes he is making disclosures in the interests of others (even if he is also acting in his own interests) and the word ‘public’ should be interpreted to mean not purely personal or private.  Any narrower an interpretation of the public interest test risks discouraging would-be whistleblowers and leads to uncertainty, for both individuals and employers, as to what will be considered by the courts to be of real public interest.

Anna Birtwistle is a partner and Wonu Sanda is a trainee solicitor at CM Murray LLP, specialist employment and partnership lawyers.  Please contact Anna or Wonu if you have any questions on worker status or whistleblowing issues.

Anna and Wonu recently represented PCaW in the intervention in Day v (1) Lewisham and Greenwich NHS Trust & (2) Health Education England.

CM Murray LLP also represented PCaW in the successful Supreme Court appeal in Clyde & Co LLP v Bates van Winkelhof 

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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