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Whistleblowers’ case: Court of Appeal confirms that disclosures made in the private interests of a worker can satisfy the “public interest” test. (24 August 2017)

Date: 24/08/2017
Duncan Lewis, Employment Solicitors, Whistleblowers’ case: Court of Appeal confirms that disclosures made in the private interests of a worker can satisfy the “public interest” test.


The Court of Appeal has decided in the case of Chesterton Global Ltd v Nurmohamed [2017] that a disclosure made in the private interests of a worker, can be in the public interest, and therefore protected under the Employment Rights Act 1996.

Background

Chesterton Global Ltd v Nurmohamed concerned an estate agent and director of Chesterton’s Mayfair office in London, who was paid commission for his work at the company. He complained that his employers were manipulating accounts in order to reduce the amount of commission that had to be paid to him and the other senior managers, which was to the benefit of the shareholders. He was dismissed for this disclosure and brought employment tribunal proceedings, alleging that he suffered a detriment and was dismissed for making a protected disclosure.

Under the 1996 Act, a disclosure is protected if the person making it can demonstrate that he had a reasonable belief that making the disclosure was in the public interest and can show a relevant failure by the employer, such as, a failure to comply with a legal obligation that it had. Both the Employment Tribunal and the Employment Appeal Tribunal (EAT) decided in Mr Nurmohamed’s favour. The EAT found that the disclosure satisfied the public interest test because it affected 100 senior managers as well as in Mr Nurmohamed. Chesterton Global Ltd appealed, arguing that for the disclosure to be in the public interest, it must serve the interests of persons outside of the workplace.

Court of Appeal

The Court of Appeal, in a unanimous decision in favour of Mr Nurmohamed, rejected Chesterton Global Ltd’s argument. The Court held that where a disclosure relates to a breach of a worker’s contract of employment, there may be features of the case that may make the disclosure as being in both the private and public interest. Lord Justice Underhill, who delivered the main judgment, stated that in assessing whether a disclosure regarding a breach of one worker’s contract by the employer may be in the public interest, the consideration of four factors might be relevant:

- The number of workers affected;
- The nature of the interests affected;
- The nature of the wrongdoing disclosed; and
- The identity of the alleged wrongdoer.

Importantly, there is no onus on the worker to prove that other workers or the public are affected by the alleged wrongdoing being disclosed. They only have to demonstrate a reasonable belief that the disclosure would be in the public interest.

Comment

This is an important case and re-opens the possibility of individuals being able to pursue whistleblowing claims relating to breach of their contract of employment. As the ‘public interest’ test is not set in stone, there is considerable judicial discretion for an individual to assert that they believe that the employer’s failure affects, amongst other things, a number of colleagues not just the claimant.

Given the factors that need to be considered, public sector employers, such as the NHS, those within the third sector and high profile private employers are particularly vulnerable and could have their practices and procedures exposed by this decision. Systematic bullying and discrimination may amount to protected disclosures as a result of this case. The impact of the decision is highlighted by the fact that there is no cap on the compensation that can be awarded in a whistleblowing claim. Individuals can be awarded compensation for loss of earnings as well as for injury to their feelings.

Anthony Thompson, the author, is a Director in the Employment department at Duncan Lewis Solicitors. With over 20 years’ experience, Anthony has advised and supported businesses and individuals on all aspects of the working relationship, including both contentious and non-contentious matters. He is also an advocate, having achieved notable successes representing clients in employment tribunals, and has negotiated significant settlements at private and judicial mediations.

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