First appellate case interpreting the term ‘public interest’ in whistleblowing legislation
In Chesterton Global Ltd (t/a Chestertons) & Anor v Nurmohamed, the EAT grappled, for the first time, with the meaning of the term 'in the public interest' inserted into section 43B of the Employment Rights Act, 1996 by section 17 of the Enterprise and Regulatory Reform Act 2013.
Background
N was employed as a Director of the Mayfair Office of Chestertons, a well known firm of estate agents. On three occasions between August and October 2013, N raised his concerns with senior managers that he believed that senior management were manipulating the accounts for the benefit of shareholders and to the detriment of 100 senior managers including himself. The ET found that N had made three protected disclosures and that he had been automatically unfairly dismissed and suffered detriments as a consequence of raising those protected disclosures.
The appeal
Chestertons appealed on two grounds:
- the ET had failed to determine whether or not the disclosures were of real public interest;
- the Tribunal had erred in concluding that disclosures made in the interest of 100 senior managers was a sufficient group of the public to amount to a matter being in the public interest.
The decision of the EAT
The EAT found that the question for consideration under section 43B(1) ERA, 1996 is not whether the disclosure per se is in the public interest but whether the worker making the disclosure has a reasonable belief that the disclosure is made in the public interest. The public interest test can be satisfied where the basis of the public interest disclosure is wrong and/or there was no public interest in the disclosure being made provided that the worker's belief that the disclosure was made in the public interest was objectively reasonable (Babula v Waltham Forest College [2007] ICRC 1026 applied).
The EAT concluded that the ET had properly asked itself and answered the question whether N made the disclosures in the reasonable belief that they were in the public interest. The words 'public interest' were introduced to do no more than prevent a worker from relying on a breach of his own contract of employment where the breach is of a personal nature and there are no wider public interest implications. The ET correctly decided that the disclosures, which concerned the manipulation of the accounts by Chesterton so as to potentially adversely affect the bonuses of 100 senior managers, satisfied the public interest test.
Alice Mayhew represented Mr Nurmohamed in the ET and EAT. To read the full judgment, please click here.
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