Whistleblowing – What is in the Public Interest?

Chesterton Global Limited v Numohamed [Court of Appeal] | 2017

We have reported on the Employment Appeal Tribunal (‘EAT’) decision previously.

Briefly, Mr N was a director of Chesterton’s London office.  On three occasions he raised with senior individuals allegations that the costs and liabilities were being misrepresented in Chesterton’s accounts.  If this was correct, the misrepresentation had negatively affected the commission he was paid (as well as 100 other managers).

A key issue in the case was whether the discussions were ‘protected disclosures’ and, in particular, whether the disclosures could be ‘in the public interest’.  Both the employment tribunal and the EAT concluded they were. Chesterton appealed to the COA.

The COA rejected arguments by Chesterton that a disclosure was only in the public interest if it:

1. was in the interests of more than one person;
2. furthers the interests of individuals other than workers (or employees) in their capacity as a worker (or employee).

Instead, it accepted arguments on behalf of Mr N that the question of whether a disclosure was in the public interest involved ‘consideration of all the circumstances’.  This included:

1. the numbers in the group whose interests were served by the disclosure.
2. The nature of the interest affected and the extent to which they were affected by the wrongdoing which was the subject of the disclosure.
3. The nature of the wrongdoing.
4. The identity of the alleged wrongdoer.

In this case, the alleged extent of the wrongdoing (the misrepresentation in the accounts of between £2 million and £3 million) and that Chesterton was a large London estate agent, in addition to the fact that 100 or so employees were potentially affected all together meant that the employment tribunal and EAT had not been wrong to find the disclosures were in the public interest.

The COA, in giving its decision, reiterated (as the EAT had done so in its decision) that the issue was whether Mr N reasonably believed what he disclosed was in the public interest.  The COA commented that it did not matter if what was alleged proved to be wrong.

The decision is not surprising and employers will need to be careful not to wrongly conclude that employees and workers are not protected against dismissal and detriment because the disclosures they make involve allegations of wrongdoing connected with their contract of employment.  A number of factors can combine and together render something as potentially in the public interest and may lead to different conclusions depending on the individual circumstances.