Specialist Lawyers Comment On Crucial Case

The Court of Appeal will hand down a significant workplace judgment on Tuesday 11 July in relation to whistleblowing laws.

The Chesterton Global Ltd and another v Nurmohamed case focusses on the public interest test which was introduced into whistleblowing law as part of changes to the Employment Rights Act 1996.

The change was made in June 2013 to help avoid situations where workers used whistleblowing laws to make protected disclosure claims to complain about breaches of their own contracts of employment.  Now individuals must demonstrate that they ‘reasonably believe’ that their disclosure was made ‘in the public interest’. This has led to much confusion in terms of how many people must be affected before a disclosure can be said to meet the criteria.

In this landmark case, Mr Nurmohamed worked for the estate agency Chestertons and brought a whistleblowing claim alleging that he and his fellow managers received a lower bonus and less commission as a result of the company falsifying the accounts.

Mr Nurmohamed argued that about 100 other managers were affected and claimed that, as a result of the number of people involved, the act of whistleblowing was in the public interest.

In considering whether the public interest test was fulfilled, the Employment Tribunal found in favour of Mr Nurmohamed and upheld his claims. It accepted that a group of 100 people constituted the definition of 'the public' and stated that the 'public' can mean a section of the public rather than the public en masse.

Following an appeal by Chestertons, the Employment Appeal Tribunal (EAT) upheld the tribunal decision EAT. It appealed further to the Court of Appeal which heard the case on 8 June 2017.  It is expected to hand down its ruling on 11 July.

In the absence of any clear guidance on this point, there have been other cases which have sought to narrow the definition of the public interest.  Four lorry drivers have, for example, tried to persuade a tribunal that their complaint about overtime satisfied this public interest test. A worker at a charity annoyed about the lack of desk space available to her also sought to argue that her disclosure was in the public interest because the public would be concerned about the working conditions of charity workers.

Expert Opinion

“This is a crucial case and many businesses will be keeping a close eye on the outcome, particularly in relation to how many other people must be affected by the subject of a particular disclosure for it to be considered to be in the public interest”. Melanie Stancliffe - Partner