Articles | Whistle while you work

Can a disclosure which is in the private interests of the worker also be deemed to be in the public interest and attract whistleblower protection? Ian Machray discusses a recent decision.

Ian Machray

Ian Machray

Whistleblowers who disclose details of wrongdoing have legal protection from being dismissed or suffering a detriment as a result of their disclosure, provided that they make their disclosure in the prescribed manner.

The law was changed in June 2013 to close a loophole which allowed workers to make whistleblowing claims regarding breaches of their own employment contracts. A new requirement was introduced that a worker must demonstrate that they reasonably believed that their disclosure was in the public interest. Chesterton Global Ltd v Nurmohamed is the first case, considering the interpretation of the public interest test, to reach the Court of Appeal (CA).

Mr Nurmohamed disclosed that his employer had been manipulating accounts to depress profits which resulted in the bonus calculations of 100 employees, including himself, being adversely affected. Mr Nurmohamed was later dismissed. He claimed that he qualified as a whistleblower due to his disclosure about the bonus calculations and that his dismissal as a result was automatically unfair.

The CA had to consider whether Mr Nurmohamed’s disclosure could satisfy the public interest test, despite the fact that it was made in the private interests of Mr Nurmohamed and only related to a relatively small group of senior managers.

The CA found that the simple fact that the disclosure is in the private interest of the individual, even where it relates to their own contract of employment, will not prevent it from being reasonably regarded as also being in the public interest.

Nevertheless, the test is fact sensitive and the CA confirmed that matters such as the number of people affected, the nature of the alleged wrongdoing and the identity and size of the wrongdoer must all be considered.

This decision suggests a relatively low bar for the public interest test by confirming that a disclosure made by a worker which is in his own private interests may still satisfy the public interest test if it also affects other workers.

In light of this, employers should take care when disciplining and/or dismissing workers who have made complaints or raised grievances which potentially encompass a public interest element. Matters of this nature should be dealt with cautiously and with strict adherence to the employer’s whistleblowing policy.