Court of Appeal clarifies “Public Interest” Test in whistle blowing cases

In Chesterton Global Ltd and anor v Nurmohamed, the Court of Appeal has held that an employment tribunal was entitled to find that an employee had a reasonable belief that his disclosures about his employer’s manipulation of profit and loss accounts were made in the public interest, despite his personal motivation in so doing (i.e. the effect this would have on his commission payments). The tribunal had identified a number of features that made it reasonable to regard disclosure as being in the public interest as well as in the personal interest of the worker – specifically, the number of employees affected; the nature of the wrongdoing, which involved large sums of money; and the fact that it was deliberate.

N was employed as director of the Mayfair office of CG Ltd, a firm of estate agents. On three occasions between August and October 2013 he alleged to senior managers that there were inaccuracies in the company’s accounts and that figures were being manipulated to the benefit of shareholders. He was concerned that costs and liabilities had been deliberately misstated, and that inaccurate figures were used to calculate commission payments to over 100 senior managers (including himself). N was later dismissed and brought claims of, among other things, automatically unfair dismissal for having made a protected disclosure, contrary to S.103A of the Employment Rights Act 1996.

An employment tribunal found that N had a reasonable belief that the disclosures were made in the public interest (as required by an amendment to S.43B ERA that came into force on 25 June 2013) and upheld N’s claim. Upon appeal, the EAT held that it was entitled to do so. Although N had a personal motivation in raising the allegations, the tribunal had been satisfied that he had the other office managers in mind, and permissibly concluded that they comprised a sufficiently large section of the public to engage the public interest. CG Ltd appealed, arguing that in order for a disclosure to be in the public interest, it must serve the interests of persons outside the workplace – mere multiplicity of workers sharing the same interest was not enough.

The Court of Appeal (Lord Justice Underhill giving the lead judgment) dismissed the appeal. It observed that that the 2013 ‘public interest’ amendment to the ERA was intended to reverse the effect of the EAT’s decision in Parkins v Sodexho Ltd 2002 IRLR 109, whereby a worker could bring a protected disclosure claim purely in respect of a breach of his or her own contract of employment. It disagreed with Public Concern at Work (which intervened in the case) that a disclosure of a breach of contract could be in the public interest if it was in the interests of anyone else besides the worker making the disclosure. The question 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 it.

On the other hand, CG Ltd went too far in suggesting that multiplicity of persons sharing the same interest can never, by itself, convert a personal interest into a public one. The statutory criterion of what is ‘in the public interest’ does not lend itself to absolute rules and the Court of Appeal was not prepared to discount the possibility that the disclosure of a breach of a worker’s contract ‘of the Parkins v Sodexho kind’ may nevertheless be in the public interest, or reasonably be so regarded, if a sufficiently large number of other employees share the same interest. Tribunals should, however, be cautious about reaching such a conclusion – the broad intent behind the 2103 statutory amendment is that workers making disclosures in the context of private workplace disputes should not attract the enhanced statutory protection accorded to whistleblowers, even where more than one worker is involved.

The Court of Appeal went on to hold that where the disclosure relates to a breach of the worker’s own contract of employment (or some other matter where the interest in question is personal in character), there may nevertheless be features of the case that make it reasonable to regard disclosure as being in the public interest as well as in the personal interest of the worker.

In this regard, the following factors suggested by N might be relevant:
• the numbers in the group whose interests the disclosure served
• the nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed
• the nature of the wrongdoing disclosed, and
• the identity of the alleged wrongdoer.

In the instant case, the tribunal had identified other features, aside from the number of employees affected, which might be said to render disclosure in the public interest – specifically, that the disclosure was of deliberate wrongdoing, and that it allegedly took the form of misstatements in the accounts to the tune of £2-3 million. The Court observed that if the accounts had been statutory, the disclosure of such a misstatement would unquestionably be in the public interest (even if it involved a private company). The fact that the accounts in question were only internal made the position less black and white. However, internal accounts feed into the statutory accounts and C Ltd is a very substantial and prominent business in the London property market. It was debatable whether the tribunal, which was navigating uncharted waters, fed those factors into its assessment that it was reasonable to regard disclosure as being in the public interest. But, even if it did not, the Court considered that they would only have reinforced its conclusion, based on the numbers alone, so that any error of law in its reasoning was immaterial.

Link to transcript: http://www.bailii.org/ew/cases/EWCA/Civ/2017/979.html