Following an amendment in 2013 to the 1998 Public Interest Disclosure Act, workers making a qualifying disclosure have to show they have a reasonable belief that it was “in the public interest”. In Chesterton Global Ltd and anor v Nurmohamed, the Court of Appeal held that they did not, however, have to show that that was their predominant motive.
Basic facts
Mr Nurmohamed, the director of the Mayfair office of Chestertons estate agency, was dismissed in October 2013 after making the first of three alleged protected disclosures concerning the company’s accounts. He claimed that they were being manipulated by senior management to the benefit of shareholders adversely affecting the level of commission payable to 100 senior managers, including himself.
He brought a claim for automatic unfair dismissal on the ground that he had made protected disclosures within the meaning of section 43B of the Employment Rights Act (ERA) 1996.
Tribunal and EAT decisions
As this was the first time that a tribunal had been asked to consider the meaning of the words “in the public interest” since the legislation had been amended in 2013, it had to decide for itself what the words might mean. It concluded that as Mr Nurmohamed had made the disclosures in the reasonable belief that it was in the interest of over 100 senior managers, this was a “sufficient group of the public to amount to being a matter in the public interest” under section 43B(1).
The EAT (weekly LELR 421) agreed that the correct question to ask was whether the whistleblower made the disclosures in the reasonable belief that they were in the public interest. The aim of the provisions was to protect employees from unfair treatment as a result of reasonably raising genuine concerns in a responsible way about wrongdoing in the workplace. The point of introducing the words “in the public interest” was simply to prevent a worker from relying on a breach of their own contract if the breach was personal to them and there were no wider public interest implications.
Decision of Court of Appeal
The Court held that in order to decide whether a disclosure was in the public interest, workers had to show that they genuinely and reasonably believed that it was. It did not have to be their predominant motive as the particular reasons were not that important. The main thing was that they could show that their (subjective) belief was (objectively) reasonable. However, if they could not give credible reasons for why they thought at the time that the disclosure was in the public interest, that might cast doubt on whether they ever really thought that it was.
When deciding the meaning of “in the public interest”, the Court said that tribunals have to take into consideration the number of people whose interests were served by the disclosure; whether those interests were important or trivial; whether the wrongdoing was deliberate or inadvertent; and the identity of the alleged wrongdoer (the more prominent the wrongdoer in terms of the size of the community affected the more the disclosure would engage the public interest).
Although the tribunal had not fed these factors into its assessment, it was still reasonable for it to conclude that the disclosure was in the public interest in this case. The disclosure was about deliberate wrongdoing in the form of mis-statements in the accounts of a very substantial and prominent business in the London property market to the tune of £2 million to £3 million.
It therefore dismissed Chesterton’s appeal.