Whistleblowing: Guidance on the 'Public Interest' test

Legal protection was first given to “whistleblowers” at work by the Public Interest Disclosure Act 1998 - workers who report malpractices by their employers or third parties have protection against dismissal or being subject to any detriment as a result of their having blown the whistle.

In order for a worker to be protected under the whistleblowing legislation they must have disclosed information which, in their reasonable belief, is made “in the public interest”and tends to show that certain specified types of wrongdoing has taken place, is taking place or is likely to take place. This includes information showing that a criminal offence has been committed or that the health or safety of any individual has been endangered as well as information which tends to show that a person is failing to comply with any legal obligation to which he is subject.

Initially the whistleblowing legislation did not expressly include the requirement for the disclosure to have been made “in the public interest”and this position was amended in 2013 following the case of Parkins v Sodexho. In that case it was held that the definition relating to the breach of a legal obligation was broad enough to cover a disclosure about a breach of the whistleblower’s own contract of employment, even though there was no public interest in the disclosure. The government considered that this case fundamentally changed the nature of the whistleblowing legislation, widening its scope beyond what was originally intended.  

The test of what is “in the public interest” was considered for the first time in the Court of Appeal in Chesterton Global Ltd v Nurmohamed and another [2017]. Mr Nurmohamed had made a disclosure to his employer Chesteron Global alleging the mismanagement of their management accounts, which he said maliciously, reduced the commission to be paid to 100 senior managers, including himself. Mr Nurmohamed raised claims for unfair dismissal and detriment as a result of making a protected disclosure.

The question for the Court of Appeal was whether the disclosure about a commission structure affecting only a small group of salesmen could be “in the public interest”.

Chesterton Global submitted that the Employment Tribunal had erred in determining that the sheer volume of employees affected by the disclosure meant it was “in the public interest”. They said mere multiplicity of workers sharing the same interests is not sufficient and the disclosure should have to extend outside the workplace. A disclosure could have the potential to be a private issue which is also “in the public interest” but this would be dependent on the nature of the disclosure, not the number of people affected. For example, doctors being forced to work excessive hours affects the doctors personally but is “in the public interest” due to the potential risks to patients.

The charity Public Concern at Work was given permission to intervene in the case and submitted a starkly opposite view. It was their position that for the benefit of employees and employers there should be a strict and tangible line drawn between what is and what is not “in the public interest”. Accordingly, they said that if disclosure affected someone other than the employee making the disclosure it would be sufficient to be considered to be “in the public interest”.

However, the Court of Appeal rejected both those extreme arguments and instead agreed broadly with the submissions made on behalf of Mr Nurmohamed who put forward the following fourfold classification which the court accepted may be a “useful tool” in determining whether a disclosure was “in the public interest”:

1. The number s in the group whose interests the disclosure served – while numbers may be relevant, this was subject to a strong note of caution.
2. The nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed – trivial wrongdoing less likely to be “in the public interest” than a more serious issue.
3. The nature of the wrongdoing –disclosure of deliberate wrongdoing is more likely to be “in the public interest” than the disclosure of inadvertent wrongdoing affecting the same number of people.
4. The identity of the alleged wrongdoer – whether it is a large well known organisation or small local business is likely to affect whether or not the issue is in the public interest. 

Whilst the Court of Appeal has given some welcome guidance on the concept of “in the public interest” by approving the abovementioned fourfold classification as a “useful tool”, the Court declined to define rigidly what the concept means. However, it is clear that “in the public interest” is a broad and fluid concept which will depend very much on the circumstances of each case. However, the Court of Appeal also urged caution to Employment Tribunals in readily finding a disclosure to be “in the public interest” where matters affect only those within one work force.

It is important to ensure you understand the full protections afforded to workers under the whistleblowing rules and what requirements are placed on employers. If you wish to discuss whistleblowing or any other Employment Law related issue please contact our specialist Employment Law Team. 

Employment law specialists