In Chestertons –v– Nurmohamed, the Employment Appeal Tribunal has given the first appellate guidance on when a worker’s disclosure is made in the public interest, so as to attract whistleblower protection.
Changes to Whistleblowing legislation
In July 2013, the whistleblower legislation was changed to require a worker making a disclosure to have a reasonable belief that the disclosure was made in the public interest. The change was primarily aimed at removing whistleblower protection from workers who made disclosures about an employer’s alleged breaches of their own personal contract of employment, where such breaches had no wider public interest.
Mr Nurmohamed’s disclosures
Mr Nurmohamed was a director at the Mayfair branch of Chestertons Estate Agents. In August and September 2013, Mr Nurmohamed made three disclosures to the effect that Chestertons was manipulating its accounts to the benefit of shareholders with the effect that he, and approximately 100 other managers, would be disadvantaged through receiving lower commission payments. Mr Nurmohamed was subsequently dismissed and brought claims in the Employment Tribunal. One of his claims was that he had been automatically unfairly dismissed for making a protected disclosure, i.e., he had blown the whistle on his employer’s wrongdoing.
The Employment Tribunal agreed with Mr Nurmohamed. It found that Mr Nurmohamed’s three disclosures pointed to Chestertons having breached its legal obligations to the 100 managers in question. This meant that the disclosures were potentially covered by the whistleblowing legislation. The Tribunal also found that the disclosures were made in the (reasonable) belief of Mr Nurmohamed at the time that it was in the interest of the 100 senior managers (and not just himself). The Tribunal felt that this was a sufficiently large group of ‘the public’ to amount to being a matter of public interest. Chestertons appealed to the Employment Appeal Tribunal
The EAT’s Decision
The EAT upheld the Employment Tribunal’s decision. The EAT made the following points about disclosures in the public interest:
- The question was not whether the disclosures were actually in the public interest, but whether Mr Nurmohamed had a reasonable belief that they were. Mr Nurmohamed had such a reasonable belief in this case.
- The new requirement for disclosures to be made in the public interest was introduced to do no more than prevent a worker from relying on a breach of his own employment contract, where the breach was of a personal nature and there were no wider public interest implications. The implication of the EAT’s statement is that the legislation should not be read too widely to exclude potential whistleblowing claims.
- The EAT did not accept the argument made on behalf of Chestertons that Mr Nurmohamed’s disclosures were essentially about a private dispute between Chestertons and its workers regarding their contracts of employment and, therefore, not in the public interest. The Tribunal had recognised that the person that Mr Nurmohamed was most concerned about in making the disclosures was himself. However, it was satisfied that Mr Nurmohamed did have other managers in mind as well. There was no reason to overturn the EAT’s conclusion that this resulted in a section of the public being affected, and the public-interest test was therefore satisfied.
Effect on Employers
This is the first appellate decision on the meaning of ‘public interest’ in the whistleblowing legislation. The EAT has made clear that the public interest hurdle will be fairly easy to clear. Even in circumstances where an employee’s primary motivation in making a disclosure involves a dispute about his or her own contract of employment, that disclosure may be in the public interest so long as other employees are affected, even in what is essentially a ‘private’ dispute between the employer and its employees about their contracts of employment.
In this case, the fact that 100 other senior managers were affected made it relatively easy for the Tribunal to find that a section of ‘the public’ was affected by Mr Nurmohamed’s disclosure. However, it will be interesting to see how this case law develops where fewer employees are affected. What happens if an employee’s disclosure about an employer’s breach of employment contracts only affects that employee and one other? We shall have to wait and see.