From 25 June 2013 onwards, under S.43B (1) of the Employment Rights Act 1996, public interest disclosures have to be “in the public interest” to qualify for protection. The ‘in the public interest’ test was added to reverse the effect of the EAT’s ruling in Parkins v Sodexho Ltd that the definition of a qualifying disclosure concerning a failure to comply with a legal obligation was broad enough to cover a breach of an employee’s own contract of employment.

In Chesterton Global v Nurmohamed, Nurmohamed (N) claimed that he had made a disclosure in the public interest after he was dismissed for disclosing information about the alleged use of wholly inaccurate profit and loss figures to calculate commissions, transitional payments and profit bonus calculations paid to over 100 managers. N believed Chesterton were deliberately misstating between £2 and £3 million of actual costs and liabilities.

An ET upheld N’s claim, as did the EAT. The EAT ruled that the key issue was whether the worker believed on an objectively reasonable basis that the disclosure was in the public interest. In this case, N did have the other managers in mind, meaning that a section of the public would be affected and the public interest test was satisfied.

The Court of Appeal rejected Chesterton’s appeal. Where the interest in question is personal in character, there may nevertheless be features of the case that make it reasonable to regard a disclosure as being in the public interest as well as in the personal interest of the worker. For example, a disclosure which tended to show that hospital doctors were being required to work excessive hours might well be in the public interest, as well as in the personal interests of the doctors themselves, because of the risk to patients.

There may be, however, many other kinds of case where it may reasonably be thought that such a disclosure was in the public interest. The question is one to be answered by an ET on a consideration of all the circumstances of the particular case and the following four factors should be taken into account:

• 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.
• The identity of the alleged wrongdoer and its ‘community’, i.e. staff, suppliers and clients.

In this case, there were over 100 people affected by the alleged wrongdoing, plus there were other features which rendered the disclosure in the public interest, specifically, the disclosure consisted of allegations of misstatements in the accounts to the tune of £2m to £3m. There was no error of law in the ET’s decision.

Public Concern at Work, the whistleblowing charity, who intervened in the case, commented that the ruling “is good news for whistleblowers” as the Court has provided “a wide interpretation of what the new statutory test means in the whistleblowing legislation.” In practical terms, however, the Court’s ruling confirms that the ‘in the public interest’ test is a broad concept and the circumstances of each case must be considered using the four-factor approach.

The aim is to provide summary information and comment on the case and the legal issues involved. While every care has been taken in compiling this information, SM&B cannot be held responsible for any errors or omissions. Specialist legal advice must be taken on any legal issues that may arise before embarking upon any formal course of action.