Whistleblowing update: What exactly is 'in the public interest'?

Under current legislation, a worker must have made a 'qualifying disclosure' to benefit from whistleblowing protection. A qualifying disclosure is any disclosure of information which, in the reasonable belief of the worker making it, is made in the public interest and shows that a specified type of wrongdoing has taken place, is taking place or is likely to take place.

The requirement that the worker believes that the disclosure is in the public interest was added to the definition of a qualified disclosure by the Enterprise and Regulatory Reform Act 2013, but until recently it was unclear exactly what effect this additional wording would have on the assessment of qualifying disclosures in whistleblowing cases. In the recent case of Chesterton Global Ltd (t/a Chestertons) and another v Nurmohamed 2015 the Employment Appeal Tribunal (EAT) considered this point.

Mr Nurmohamed was a senior manager at the estate agent Chestertons who believed that the company accounts were being manipulated through inaccurate profit and loss figures. He felt that this was negatively affecting the commission income of himself and about 100 other senior managers, and made various disclosures to this effect during his employment. Following his dismissal, Mr Nurmohamed brought a claim against Chestertons and the Employment Tribunal found that he had been submitted to detriment on the grounds that he had made protected disclosures, and had been unfairly dismissed. Chestertons appealed this decision on the basis that Mr Nurmohamed's disclosure was made solely in the interest of 100 senior managers and this could not be a sufficient section of the public to constitute a 'public interest'. 

The EAT dismissed the appeal, holding that it is not necessary to show that a disclosure was of interest to the public as a whole, as it is likely that only a section of the public will be affected by any qualifying disclosure. The new public interest requirement was simply designed to prevent workers from relying on breaches of a personal nature where there is no wider public interest implications.

The EAT also confirmed that the public interest requirement can be satisfied where there is no public interest, provided that the worker held a reasonable belief that making the disclosure was in the public interest. The test for reasonable belief remains the same as under previous whistleblowing legislation, and will be satisfied provided that the Tribunal consider the belief to be objectively reasonable.

This case provides some helpful guidance as to the purpose of the new public interest test and confirms that a relatively small group of affected individuals can be sufficient to satisfy the requirement. This judgment will provide comfort to potential whistleblowers but may be of concern to employers, who should bear this narrow interpretation of 'public interest' in mind when considering disclosures from employees and the potential for any whistleblowing claims.

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