The Court of Appeal has for the first time considered the new ‘public interest’ element of the whistleblowing law, the Public Interest Disclosure Act (PIDA). Public Concern at Work intervened in Chesterton Global Ltd vs Nurmohamed held at the Royal Courts of Justice last week.
In a judgment that is good news for whistleblowers, the Court of Appeal has found in favour of the individual making the disclosure, providing a wide interpretation of what the new statutory test means in the whistleblowing legislation.
Mr Nurmohamed was a senior manager working for Chesterton Global, a large firm of estate agents. He raised concerns that the company’s accounts were being deliberately manipulated by senior management to justify decisions around pay, to his detriment as well as to the detriment of more than 100 other office managers. Mr Nurmohamed was dismissed by Chesterton and brought a claim for automatic unfair dismissal and unlawful detriment for having made a protected disclosure.
In June 2013, the whistleblowing law was changed to close a legal loophole whereby individuals were able to claim protection under PIDA for raising a concern about a breach of their own personal employment contract by claiming it was indeed a ‘breach of a legal obligation’. This was in a bid to overturn the ruling in Parkins v Sodexho which, it was said, had watered down the public interest purposes of the legislation. The new test requires any worker claiming protection under the Act to prove that they reasonably believed, both subjectively and objectively, that they were making a disclosure in the public interest. This is the first case to reach the Court of Appeal in which the vexed issue of how to interpret the new test is considered.
The Court of Appeal has chosen to leave it to employment tribunals to assess the new test ‘as a matter of educated impression.’ This assessment must look at the character of the interest served by the information disclosed rather than simply a question of numbers alone. The Court of Appeal endorsed four factors proposed by Mr Nurmohamed’s counsel that may assist with this assessment, as follows:
- 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 – a disclosure of wrongdoing directly affecting a very important interest is more likely to be in the public interest than a disclosure of trivial wrongdoing affecting the same number of people, and all the more so if the effect is marginal or indirect;
- the nature of the wrongdoing disclosed – disclosure of deliberate wrongdoing is more likely to be in the public interest than the disclosure of inadvertent wrongdoing affecting the same number of people;
- the identity of the alleged wrongdoer – the larger or more prominent the wrongdoer (in terms of the size of its relevant community, i.e. staff, suppliers and clients), the more obviously should a disclosure about its activities engage the public interest
The Court of Appeal stressed that this is about assessing the reasonable belief of the worker making the disclosure and that on the question of reasonableness there may be more than one reasonable view as to whether a particular disclosure was in the public interest. It also points out that a disclosure does not cease to qualify, if the worker justifies his belief with information that becomes available after the disclosure is made.
Essentially this is a sensible finding for whistleblowers as although there is necessarily an amount of uncertainty in how a court may view a disclosure, it is an interpretation that broadly applies the statutory language.
So there can be cases where the disclosure relates to a breach of the worker’s own contract of employment and yet still be in the public interest.
Whistleblowing Charity Public Concern at Work Chief Executive Cathy James, OBE, who intervened [on behalf of Mr M Nurmohamed] in this case said:
‘’We are pleased that the Court of Appeal has reached the right decision in this case. It is obviously desirable that the law protects workers who responsibly raise wrongdoing, rather than trips them up with technicalities or leaves them exposed to retaliation or uncertainty as to whether they are protected.
“It is especially broad in the way in which a whistleblower’s belief around the disclosure is not set in stone at the time the disclosure was made. Other matters may emerge that mean his or her belief is justified – a useful broadening of the law where, as is often the case, the whistleblower does not have the full picture at the time of speaking up.”
‘’When PIDA was being debated in Parliament Lord Borrie said ‘The purpose of this Bill is to give a clear signal to people in places of work up and down the country that if they suspect wrongdoing, the law will stand by them provided they raise the matter in a responsible and reasonable way. The verdict applies this broad interpretation of the operation of the law and is good news for workers across the UK who will hopefully now not feel deterred from raising a concern.“
Anna Birtwistle of CM Murray LLP with whom PCaW worked with on this intervention, said,
‘’Importantly the Court did not adopt a restrictive interpretation of the public interest test by requiring disclosures to be objectively of real public interest to people outside of the individual’s workplace which would have risked potentially dissuading would be whistleblowers from responsibly raising concerns of wrongdoing, as well as leaving both workers and employers with a large degree of uncertainty over the legal status of the disclosures made.”