Chesterton Global Limited and Another v Nurmohamed (2017) EWCA Civ 979 – The “Public Interest” Test in Whistleblowing Claims
Trisan Hyatt, employment and discrimination barrister at Invictus Chambers, reviews the recent decision of the Court of Appeal in which the Court considered the “public interest” test in the whistleblowing legislation (as amended) and gave it a wide interpretation.
In order to be protected against detriment or dismissal under the whistleblowing legislation, a worker must have made a qualifying disclosure. This is any disclosure of information which, in the reasonable belief of the worker making it, is made in the public interest and tends to show that one or more of the six specified types of wrongdoing has taken place, is taking place or is likely to take place (section 43B(1), Employment Rights Act 1996 (ERA 1996)).
The Background Facts
The Claimant was employed by Chesterton Global Limited (‘CGL’) as Director of its Mayfair office from January 2008 until his dismissal on 17 October 2013. Following his dismissal, he brought proceedings in the Employment Tribunal alleging that he had suffered detriments and been dismissed because he had made protected disclosures within the meaning of section 43B of the Employment Rights Act (‘ERA’) 1996.
CGL in its ET3 acknowledged that it was liable for ordinary unfair dismissal, but disputed the claims based on the whistleblowing provisions. Before the ET the issues were whether the Claimant made the disclosures that he alleged; whether, if so, they were protected within the meaning of the Act; and whether in any event they constituted the principal reason for his dismissal or a ground for the detriments of which he complained.
By a judgment sent to the parties on 4 June 2014 an employment tribunal chaired by Employment Judge Walker upheld both claims.
The Decision of the EAT
CGL appealed against the finding that the disclosure was made in the public interest. The EAT (Mr Justice Supperstone, sitting alone) dismissed the appeal. The EAT held that there was no need for the tribunal to decide objectively whether the disclosure was in the public interest. The issues were whether the worker believed that the disclosure was in the public interest and whether in the tribunal’s view that belief was objectively reasonable. By a judgment handed down on 8 April 2015 the Employment Appeal Tribunal (Supperstone J sitting alone) dismissed the Respondents’ appeal.
The Court of Appeal
CGL appealed to the Court of Appeal. The Court of appeal considered whether the ET was entitled to find that the Claimant had made the disclosures in question in the reasonable belief that they were “in the public interest”, which is one of the elements in the definition of a protected disclosure. That requirement was introduced by amendment in 2013 and has not previously been the subject of any consideration in this Court. Accordingly, the charity Public Concern at Work (“PCaW”) has been given permission to intervene. The Court of Appeal (Underhill LJ, with whom Black LJ and Beatson LJ agreed) dismissed the appeal, and upheld the tribunal’s decision that Mr Nurmohamed’s disclosure satisfied the public interest test.
Lord Justice Underhill confirmed that a worker’s reasonable belief that their disclosure was made in the public interest has a subjective and objective element, applying Babula v Waltham Forest College  EWCA Civ 174. A claimant’s belief may be reasonable even if it is wrong. As a result, there may be more than one reasonable view as to whether a disclosure was in the public interest and Tribunals should avoid substituting its own view of whether the disclosure was in the public interest for that of the worker. This was to be expected and the real question turned on what the words “in the public interest” meant.
The Court of Appeal adopted four relevant factors proposed by James Laddie QC (Mr Nurmohamed’s counsel) as a good starting point for consideration:
- The numbers in the group whose interests the disclosure served.
- The nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed. 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. This would be all the more so if the effect is marginal or indirect;
- 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;
- The identity of the alleged wrongdoer. 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, although this principle “should not be taken too far”.
In this case, the court held that there were factors besides the number of employees affected that might be said to render the disclosure in the public interest. It related to alleged deliberate wrongdoing, which took the form of financial misstatements on a “substantial scale”. If the accounts had been statutory accounts, even of a private company, this would “unquestionably” have been in the public interest. The fact that these were internal accounts made the matter less clear, but internal accounts feed into the statutory accounts, and the court noted that this was a very substantial and prominent business in the London property market.
The Court of Appeal gave a wide interpretation to the public interest test in this case, which is good news for whistleblowers but not so good for employers.
However, the Court of Appeal limited the impact of its decision as Underhill LJ warned tribunals to be cautious of offending the “broad intent” behind the public interest test, which was to prevent whistleblowing laws being prayed in aid over “private workplace disputes”, even those involving a number of employees, where none of the other factors pointing towards a public interest element are present.