We look at the Court of Appeal’s decision on Chesterton Global Limited v Nurmohamed.
The Public Interest Disclosure Act 1996, grants protection to a whistle-blower if he or she has a reasonable belief that the disclosure of the information is ‘the public interest’.
The Act doesn’t define the meaning of ‘public interest’, and the COA has provided some welcome guidance on this point in this case.
The claimant was a Director of Chesterton’s Mayfair office, and made an alleged protected disclosure, stating that he believed Chesterton was deliberately misstating £2-3 million of actual costs and liabilities through the entire office and department network. This affected the earnings of 100 senior managers, including his own. He also alleged that the new regime manipulated Chesterton’s performance figures to increase perceived profitability to the shareholders.
The disclosure, therefore, served the claimant’s personal interest (which was the main reason why he made the disclosure), as well as the interests of 99 of his colleagues. It also served the interests of the shareholders, as he believed the new regime would encourage a belief that Chesterton had increased profitability.
One of the issues for the COA to determine was whether, in the circumstances, the claimant’s disclosure was made ‘in the public interest’.
In the COA’s view, a personal disclosure could be interpreted as being in the public interest if it had certain characteristics or features. The COA suggested the following factors could be helpful:
•the number of people that were affected by the disclosure
•the nature of the wrongdoing disclosed
•the type of interest affected
•and the identity of the wrongdoer.
Applying these factors to the claimant’s case, the COA found that the his disclosure was in ‘the public interest’, and was, therefore, a protected disclosure. In this instance, there were a significant amount of people that were affected by the wrong doing - it was deliberate, and the company was a substantial and well known business.
The decision provides some helpful clarification on the factors to be taken into account when determining whether a disclosure is in the public interest. The threshold is relatively low – whistleblowers do not need to show that they considered the ‘public interest’ when the disclosure was made. Nor does the ‘public interest’ element have to be the main reason why the disclosure was made. The courts are, however, unlikely to find that a disclosure was in the public interest if none of the other factors referred to by the COA are present.
Employers are likely to find it difficult to argue that a disclosure is not in ‘the public interest’ if the disclosure affects a number of people, the type of wrong-doing is serious, or the wrong-doer is a well-known prominent entity or person.
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