The Court of Appeal in Chesterton Global Ltd v Nurmohamed confirms that a complaint by a worker about unlawful conduct committed by the employer which is mostly personally motivated may nevertheless have the protection of the whistleblowing legislation if the worker is subsequently victimised or dismissed.

Background

Mr Nurmohamed (an estate agent and director) claimed that he brought to his employer’s attention his reasonable belief that the monthly accounts were being manipulated to repress profit for the benefit of the shareholders (a group of investors which had acquired the company in 2011) which adversely affected (i) his and over 100 senior managers’, entitlement to commission and (ii) anybody who relied on the accounts. The Tribunal at first instance was mindful that Mr Nurmohamed raised the issue because he was mostly concerned about himself but was satisfied that at the time Mr Nurmohamed raised the issue he did have the other office managers in mind but not anybody who relied on the accounts.

In 2013, legislation was passed to make it clear that a worker must have a reasonable belief that their complaint that the employer has done something unlawful is made in the public interest. This was to stop the practice of employees obtaining redress under the enhanced protection afforded to whistleblowers (which includes injury to feelings for victimisation which does not amount to a dismissal and, for dismissal, uncapped compensation for future loss of earnings) by complaining that an employer had unlawfully breached their own employment contract.

In Chesterton Global v Nurmohamed, the Court of Appeal had to consider – under the new test – whether a worker must make their disclosure purely because it affects others (i.e. the public) or whether the wrongdoing disclosed can personally affect him too. It further considered whether an employee’s colleagues only could be classed as the ‘public’ and whether the test is dependent upon the number of individuals affected. Employment lawyers and HR practitioners eagerly awaited the answers to these questions.

On the question of motivation, the Court of Appeal held that a disclosure can be ‘in the public interest’ even if the worker is mostly personal motivated in making it. It did not rule out the possibility that the interest of other colleagues only being affected could satisfy the test for public interest.

On the question of numbers of people benefited, the Court held that whether a disclosure is in the public interest depends on the character of the interest served by it rather than simply on the number of people sharing that interest.

The Court considered that factors relevant to the public interest test include:

• The number of the group affected
• Nature of interests affected
• Nature of wrongdoing disclosed
• Identity of alleged wrongdoer – i.e. the larger or more prominent the wrongdoer in terms of the size of the relevant community

The Court of Appeal also addressed the issue of ‘reasonable belief’. It confirmed that a worker’s belief that the wrongdoing is ‘in the public interest’ must be genuine and said the following about the reasonableness of the belief: “In principle, a tribunal might find that the particular reasons why the worker believed the disclosure to be in the public interest did not reasonably justify his belief, but nevertheless find it to have been reasonable for different reasons which he had not articulated to himself at the time to be in the public interest”. It held that disclosure will not cease to qualify simply because the worker seeks, as not uncommonly happens, to justify it after the event by reference to specific matters which the tribunal finds were not in his head at the time he made it.

Click here for the judgment click here to review the full Judgment.

Implications

Employers should not automatically discount a complaint as having whistleblowing protection simply because it affects a small number of staff .