12 Jul 2017

Whistleblowing - what is in the public interest?

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Employers have this week been provided with some guidance on what constitutes "public interest" in the context of whistleblowing claims.

Since 2013, in order to bring a successful whistleblowing claim a worker has to show that they reasonably believed that making the disclosure was "in the public interest". Public interest is not defined in the legislation and Chesterton Global Ltd v Nurmohamed is the first case on the point to reach the Court of Appeal.

In its judgment, the Court of Appeal has held that a disclosure made by a worker and which is in his own private interests may be in the public interest if it also affects other workers, depending on the following considerations:

(a) the number of people affected; 
(b) the nature and seriousness of the issues involved;
(c) the nature of the alleged wrongdoing and whether it is deliberate; and
(d) the identity of the alleged wrongdoer – e.g. the size of the organisation.
   

While the guidance will be helpful to some extent in assessing whether a particular individual might benefit from whistleblowing protection, it does not give employers much certainty. It is clear that the affected group of individuals need not extend beyond the particular workforce but that the issue must affect more than just the "whistleblower" himself, but beyond that the position remains unclear.

While here a disclosure about a commission structure which affected Mr Nurmohamed along with around 99 other employees was deemed to be in the public interest for reasons which are clear from the judgment, there is no magic in that number of affected workers and whether protection is available will continue to be hugely dependent on the facts.

Disappointingly, the decision doesn't provide the clarity we had hoped for and simply saying "it depends on its facts" is unhelpful to employers in cases that have potentially unlimited liability and significant reputational risk.

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Paul Reeves

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