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The public interest test
[ch 13: pages 451-452]In 2013, the government changed whistleblowing law by introducing a public interest test (section 43B, ERA 96). As a result, it is no longer enough for the disclosure to fall within one of the categories listed above. In addition, the worker must reasonably believe that their disclosure is “in the public interest”. In the following case, the Court of Appeal delivered an important ruling giving a broad interpretation to the words “public interest”:
Mr Nurmohamed worked for Chestertons Estate Agents. A new commission system was introduced which he believed would cut his earnings. He met with a director and showed her evidence of what he regarded as accounting discrepancies, falsely reporting an office’s profitability in order to lower commission payments. He described it as “manipulating the accounts to the benefit of the shareholders”. He repeated the allegation to another director, complaining that “wholly inaccurate profit and loss figures” were being used to calculate commission, affecting “over 100 managers’ earnings”. Eventually he was dismissed. He brought a tribunal claim alleging that he was dismissed for making protected disclosures. Chestertons argued that the disclosure was not in the public interest but the Court of Appeal ruled that it was.
Chesterton Global Ltd & Anor v Nurmohamed & Anor [2017] EWCA Civ 314
The Court of Appeal used the Chesterton ruling to set out some guidance on the public interest test:
• the tribunal’s job is to assess whether a worker genuinely and reasonably believed their disclosure to be in the public interest when they made it. A tribunal must not substitute its own view as to the “reasonableness” of this belief;
• a disclosure will be protected even if the public interest was not the worker’s main motive for making the disclosure;
• whether or not the worker held a reasonable belief that their intended disclosure was in the “public interest” will always depend on the specific facts of each case;
• a disclosure about the someone’s own employment contract, or some other issue affecting that person's individual interests (or the private interests of a group of co-workers) can also be in the wider “public interest”, depending on the specific context. An example might be a dispute about health, safety or welfare at work (see, for example, Morgan v Royal Mencap Society [2016] UKEAT/0272/15/LA). The Court of Appeal suggested that the following factors might be relevant when deciding whether the disclosure meets the public interest test:
◊ how many are affected by the alleged wrongdoing, how, and how seriously are they affected;
◊ the type of wrongdoing (revealing deliberate wrongdoing is more likely to be in the public interest that revealing a mistake); and
◊ the alleged wrongdoer’s identity.
It is not up to the employer to decide whether an employee is motivated by a public interest in making a disclosure (Beatt v Croydon Health Services v NHS Trust [2017] EWCA Civ 401).
As long as the disclosure is made in the public interest, there is protection even the worker is motivated by bad faith or malice. However, tribunals can reduce compensation by up to 25% if they decide that the disclosure was not made in good faith.