Given the recent release of Private Chelsea Manning and the continuing Julian Assange saga, whistleblowing is never far from the news. Whistleblowing raises questions about the very nature of transparency and liberality: how far should we protect individuals who leak information to the detriment of organisations? What do the public have a right to know? How far does the public interest extend in terms of employment law?
The former two questions may for now be left to the academics, but the latter question has been considered for the first time by the Court of Appeal in Chesterton Global Ltd vs Nurmohamed, who have upheld that a flexible interpretation of a reasonable belief in the whistleblowing’s public interest should be adopted, and have provided a framework for this end.
Statutory protection for whistleblowers specifies that for legal protection they must have made a qualifying disclosure. This means that disclosed information must constitute at least one of six types of wrongdoing specified in section 43B(1) of the Employment Rights Act 1996 and have been, in the reasonable belief of the whistleblower, leaked in the public interest. It is not necessary that the wrongdoing actually took place, provided the whistleblower’s belief in its existence was objectively reasonable.
Yet residual questions remained over how widely a reasonable belief in the public interest would be construed by the courts, and Nurmohamed has served to clarify this ambiguity. Mr Nurmohamed had been working as a manager at Chestertons, and had made claims to directors that the company had been distorting financial records, which had had the effect of lowering commissions for around 100 managers. For this disclosure Mr Nurmohamed was dismissed, and he subsequently took Chestertons to an employment tribunal.
The tribunal found that his dismissal was inherently unfair as his disclosures could reasonably be considered in the public interest, given that they were in the interest of a significant number of mangers. This ruling was appealed, and the litigation eventually reached the Court of Appeal, providing the court its first opportunity to consider the precise nature of disclosures made in the reasonable belief of public interest.
In their decision, the Court of Appeal dismissed Chestertons’ appeal, concurring with the tribunal that Mr Nurmohamed’s disclosure satisfied the public interest test. They thus rejected Chestertons’ argument that information can only be considered in the public interest when it affects external individuals. Yet, they also rejected the argument that disclosures can reasonably be considered in the public interest simply because someone other than the whistleblower’s interests are affected by the information. Instead, the Appeal Court highlighted that there are no ‘absolute rules’ in this area, and emphasised that the decisive question is not what is in fact the public interest, ‘but what could reasonably be believed to be’.
The question, then, is how tribunals can decide when a disclosure can be reasonably considered in the public interest. The Court of Appeal suggested four factors to consider in determining this reasonableness:
- The numbers in the group whose interests the disclosure served;
- The nature of the interests affected and the extent to which they were affected by the wrongdoing disclosed;
- The nature of the wrongdoing disclosed; and
- The identity of the alleged wrongdoer.
Thus, in Nurmohamed the Court of Appeal has moved to clarify ambiguity over the precise nature of a whistleblower’s reasonable belief in the public interest. They have emphasised that the question is whether the belief in the public interest of the whistleblowing is reasonable, and have provided a framework to assess this. This decision, then, can be tentatively welcomed by whistleblowers, as they now have factors to consult to ensure they enjoy legal protection when attempting to disclose information.