The Court of Appeal’s judgment in Chesterton Global Limited & Another v Mohamed Nurmohamed was handed down late yesterday.
This is an immensely important judgment in the field of employment law and whistleblowing, in that it defines what the public interest is for the purposes of whistleblowing claims. Public Concern at Work (PcAW) intervened in the Court Appeal proceedings, reinforcing its significance.
David von Hagen, a consultant in our employment team, acted for Mr Nurmohamed from the outset of these proceedings in 2013, from the successful Employment Tribunal claim in 2014, through the Employment Appeal Tribunal in 2015 and now the case being heard at the Court of Appeal in June 2017, over four and a half years after Mr Nurmohamed was dismissed.
The Court of Appeal dismissed Chesterton’s appeal, found against PcAW but, critically for us, found in favour of Mr Nurmohamed.
UK law prohibits employers from dismissing workers or subjecting them to detriments as a result of them making a ‘protected disclosure (in other words blowing the whistle) on wrongdoing at work. Whistleblowing claims are serious. There is no cap on the compensation awarded, no qualifying service is required to bring a claim, and Interim Relief is available for employees.
However, since 2013, to bring a whistleblowing claim the disclosure must be in the public interest. This is a difficult term to define and Mr Nurmohamed’s case was all about exactly what it means in practice.
The idea behind the public interest test was to reverse the effect of a case called Parkins –v- Sodexho, which essentially held that an employee making a disclosure about his employment contract, and nothing else, was protected. The public interest test was introduced to counter the effect of this case, which potentially would have turned every breach of contract/unfair dismissal claim into a whistleblowing claim. It could have turned claims about private disputes between employers and employees into whistleblowing claims, which is not the aim of whistleblowing legislation.
However, the public interest test is tricky. Does it mean the public genuinely has to have an interest? Does it mean the disclosure must be relevant outside the workplace? Does it mean at least one other employee has to be affected by it to stop private disputes being heard?
The Court of Appeal decision in Nurmohamed clarifies what is required to pass the test.
It is a triumph for whistleblowers in that it provides a wide definition of what is in the public interest. This makes it more likely that (genuine) disclosures will be deemed to be protected, thereby safeguarding whistleblowers from being subjected to dismissal and detriments by employers.
James Laddie QC, acting for Mr Nurmohamed, presented his interpretation of what “public interest” means. The Court of Appeal adopted his four-part test to determine whether a disclosure has been made in the public interest. The Tribunal must consider:
- The number of people in the group whose interests the disclosure protected and/or highlighted;
- The nature of the interest(s) affected (in this case the proper calculation and payment of commission to a large number of employees) and the extent to which those interests are affected by the wrongdoing disclosed. A disclosure of wrongdoing directly affecting an important interest is more likely to be in the public interest;
- The nature of the wrongdoing disclosed – disclosure of deliberate wrongdoing is more likely to be in the public interest than the disclosure of inadvertent wrongdoing; and
- The identity of the alleged wrongdoer. The larger or more prominent the wrongdoer (in terms of the size of its relevant community, i.e. staff, suppliers and clients), the more obviously a disclosure about its activities involves the public interest.
A number of cases were adjourned pending the outcome of this case, and the test set out above will be the one applied.
It remains to be seen whether Chestertons will apply for leave to appeal to the Supreme Court.