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Published 11 July 2017
Yesterday (10 July), the Court of Appeal handed down its closely-watched decision in the case of Chesterton Global Limited (t/a Chestertons) and another v Nurmohamed. In order for "whistleblowing" to be protected under UK law, it must be in the "public interest". This is the first case which has gone to the Court of Appeal so that it could determine what it means to blow the whistle "in the public interest". The Court upheld the claim brought by a manager of the Estate Agents, Chestertons, that his disclosures relating to Chestertons allegedly mis-stating internal company accounts (and thereby undervaluing bonus payments made to managers) was capable of being in the "public interest".
Reacting to the judgment, DAC Beachcroft LLP Employment and Pensions Partner, Udara Ranasinghe, said:
"The Court of Appeal's decision has the benefit of legal purity at the cost of certainty. In essence, the Court has said that there are no hard and fast rules about whether or not something is in the "public interest" – an Employment Tribunal in making this decision will have to look at the substance of what was said and decide by looking at all the circumstances whether this is in the public interest.
While undoubtedly the reasoning is consistent with what is likely to have been intended by legislators and the threshold in practice may remain relatively low, it does raise the bar nonetheless slightly higher for whistleblowers and may mean employers are encouraged in cases of personal complaints to challenge the validity of claims more robustly. It is also likely to mean that whistleblowing cases will become more fact-sensitive, thereby adding to uncertainty for employers and workers alike."
The Court of Appeal has said that it’s a two-part test to determine whether it can be said that a worker has a reasonable belief that their whistleblowing was in the public interest. Firstly, did the worker genuinely believe any whistleblowing was in the "public interest" when they made their disclosure? Second, could that whistleblowing objectively be said to be in the public interest and thereby justify a reasonable belief? In looking at whether the substance of a disclosure might be in the public interest, the Court suggested a number of relevant factors to consider, including the numbers affected, the nature of the interest affected by the disclosure and the nature of the wrongdoing disclosed.