The Court of Appeal has just ruled in the Chesterton Global Ltd and another v Nurmohamed whistleblowing “public interest” test case.
Background To The “Public Interest” Whistleblowing Test Case
Section 43B of the ERA 1996 was amended back in 2013 by S17 of the Enterprise and Regulatory Reform Act 2013. As a result of the amendment, an employee can now only make a protected disclosure should they have a reasonable belief that the disclosure was in the public interest. The amendment was designed with the intention of preventing employees from using the whistleblowing legislation with respect to breaches that relating only to their own employment contract and that had no wider public interest implications.
Nevertheless, this begged the question as to what was meant by the term, “in the public interest“. The EAT held in 2015 that the main determinant was whether the employee themselves genuinely believed that the disclosure was in the public interest. That is, it is not whether disclosure is objectively in the public interest. It was this decision by the EAT that was then appealed to the Court of Appeal
The Court of Appeal Ruling
The appeal was heard by the Court of Appeal on the 8th June 2017, and the Court has just released its judgment. The Court held that there are no absolute rules as “Parliament has chosen not to define it“. It ruled that tribunals should assess each case on its own merits, consider a number of factors, and “apply [them] as a matter of educated impression“. The following 4 factors that should be taken into account were identified by the Court (at paragraph 34 of the judgment): “(a) the numbers in the group whose interests the disclosure served (b) the nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed – a disclosure of wrongdoing directly affecting a very important interest is more likely to be in the public interest than a disclosure of trivial wrongdoing affecting the same number of people, and all the more so if the effect is marginal or indirect; (c) the nature of the wrongdoing disclosed – disclosure of deliberate wrongdoing is more likely to be in the public interest than the disclosure of inadvertent wrongdoing affecting the same number of people; (d) the identity of the alleged wrongdoer – as Mr Laddie [Mr Nurmohamed’s barrister] put it in his skeleton argument, “the larger or more prominent the wrongdoer (in terms of the size of its relevant community, i.e. staff, suppliers and clients), the more obviously should a disclosure about its activities engage the public interest” – though he goes on to say that this should not be taken too far.“
The Court of Appeals ruling is a good one for whistleblowers. The Court held that the main determinant is whether the employee reasonably believes that the disclosure is in the public interest, and not the more restrictive approach as to whether disclosure is objectively in the public interest. The Court ruled that the “exercise requires…tribunal[s] to recognise, as in the case of any other reasonableness review, that there may be more than one reasonable view as to whether a particular disclosure was in the public interest; and that is perhaps particularly so given that that question is of its nature so broad-textured.” Furthermore, one of the consequences of this ruling is that whilst a disclosure may pertain to a breach of the disclosing employees own employment contract, a tribunal may still rule that it was nevertheless in the public interest.