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Legal Update

When is a whistleblowing disclosure in the “public interest”?

14 July 2017
Mayer Brown Legal Update

The Court of Appeal decision in Chesterton v Nurmohamed has been delivered. It concerns the question of when a worker’s disclosure will be in the "public interest" for the purposes of the whistleblowing legislation. Whether a worker attracts whistleblower status is of key interest to employers because of the significantly enhanced remedies available to them, including potentially unlimited compensation where they are dismissed by reason of the disclosure they have made.

Mr Nurmohamed had complained that Chestertons were manipulating their accounts so as to reduce the bonuses payable to him and a number of his senior manager colleagues (around 100 in total). Chestertons argued that the public interest test was not satisfied just because other employees were in the same position as Mr Nurmohamed; it was still a private complaint about his own employment contract that happened to affect others as well. In order to satisfy the public interest test, Chestertons argued, the issue had to extend outside the workplace.

The Court of Appeal disagreed. They said that the fact that a disclosure relates to other employees is not normally enough on its own, but a disclosure does not necessarily have to extend outside the workplace. The factors to be considered are:

  • The number of people affected (though sheer numbers alone will not normally be enough)
  • The type of interest concerned (is it important or trivial?)
  • The nature of the wrongdoing (was it deliberate or inadvertent?)
  • The identity of the employer (how prominent an organisation is it?)

In the Chesterton case, they said, it was not just that 100 employees were affected. The alleged manipulation of the accounts was serious, significant (between £2m-£3m of allegedly mis-stated liabilities) and deliberate. As a well known national estate agent, Chestertons was a prominent organisation and so disclosure of their alleged deliberate wrongdoing could plainly be regarded as being in the public interest.

In conclusion, the ability of an employee to attract whistleblower status by complaining about a breach of their own employment contract lives on. Whether the test is passed will depend on the circumstances of the particular case, taking into account the factors referred to above and no doubt others as the case law continues to develop in this area. The test has not become any simpler and will remain an issue for employers to consider every time there is a whistleblowing complaint, at least where the wrongdoing relates to the employee’s own employment.

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