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Farrer & Co | Employers beware: the 'public interest' hurdle in whistleblowing is seemingly low

If it's not a case on the gig economy making the employment news headlines, it's one on whistleblowing (see, for example, here). And this month is no exception, with the Court of Appeal handing down its decision in Chesterton v Nurmohamed. In a judgment that is undeniably a blow for employers, the Court has considered what it means for a disclosure to be 'in the public interest' and in doing so has set the bar low.

Our blog piece on the EAT decision on Chesterton gives a full background on the facts of the case and on whistleblowing protection in general. Briefly, the EAT was satisfied that although Mr Nurmohamed was mainly concerned with his own financial position when making his disclosures, he also had the other (100 or so) senior managers in mind (whose income would also be affected by the alleged accounting malpractice), which was a sufficient group of the public to engage the public interest. The question the Court of Appeal had to consider was whether the EAT was entitled to find that Mr Nurmohamed made his disclosures in the reasonable belief that they were in the public interest, despite his personal motivations in raising the allegations.

In dismissing Chesterton's appeal, the Court of Appeal has confirmed that a disclosure which is in the private interest of the worker making it, can also be in the 'public interest' because it serves the (private) interests of other workers as well. Cases will, of course, be heavily dependent on the facts but this is noteworthy interpretation.

The Court of Appeal rejected Chesterton's arguments that in order for a disclosure to be in the public interest, the interests served have to 'extend outside the workplace' in the sense that the disclosure furthers the interests of persons other than the workers themselves. Incidentally, the Court of Appeal also rejected the starkly opposite position taken by Public Concern at Work (who were given permission to intervene) that a disclosure could be in the public interest if it is in the interests of anyone else besides the worker making the disclosure. All in all, this seems a logical middle ground.

In reaching its decision, the Court of Appeal adopted four criteria as a useful starting point for determining 'public interest':

The numbers in the group whose interests the disclosure served - a disclosure affecting the whole workforce is more likely to be protected than one affecting only one or two workers.

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.

The nature of the wrongdoing disclosed – disclosure of deliberate wrongdoing is more likely to be in the public interest than disclosure of inadvertent wrongdoing affecting the same number of people.

The identity of the alleged wrongdoer – the larger or more prominent the wrongdoer, the more obviously should a disclosure about its activities engage the public interest.

The Court of Appeal observed that although the accounts in this case (which were the subject of the manipulation) were only internal, if the accounts were the statutory accounts, even of a private company, the disclosure of such a misstatement would unquestionably be in the public interest. The Court of Appeal was also not prepared to rule out the possibility that the disclosure of a breach of a worker's contract (e.g. of the Parkins v Sodexho kind, where there had been a breach of his/her own employment contract) may nevertheless be in the public interest, or reasonably be so regarded, if a sufficiently large number of other employees share the same interest.

However, there is a glimmer of light on this point – the Court of Appeal urged Tribunals to be cautious in cases about breach of individual contracts: on the whole, workers making disclosures in the context of private workplace disputes should not attract the enhanced statutory protection accorded to whistleblowers – even where more than one worker is involved. This at least is helpful: a Tribunal should look behind a worker's concern for his or her fellow workers to determine that it is indeed genuine, rather than an attempt to gain additional protections for what is essentially a private complaint.

What is the practical impact for employers?

This significant Court of Appeal decision is clearly not helpful for employers: to the extent that the public interest test did place an additional obstacle in the way of whistleblowers, the Court of Appeal has set that hurdle at a relatively low (yet fact specific) level. It remains fairly easy for a worker to demonstrate they have a reasonable belief that their disclosure is in the public interest, provided they can show the issues in question affect other individuals too. In addition, a disclosure will not cease to qualify simply because the worker seeks to justify it after the event – as is often the case – by reference to reasons not expressed at the time. The public interest requirement does not even need to be his or her principal motive.

This case is a salutary lesson to employers not to dismiss allegations by employees out of hand just because, on the face of it, they seem to relate to personal circumstances. If there's a chance the allegations could relate to other workers, it's worth stopping to consider if whistleblower protections might apply. While the Court was clear that such protections are not intended to protect those with purely personal complaints, given the penalties at stake, caution is still the wisest approach to take. And as ever, if in doubt, we are happy to give a view.

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