Chesterton Global Ltd & Anor v Nurmohamed & Anor (Rev 1)

A worker reasonably believes that a disclosure is in the public interest where, viewed in all the circumstances, the disclosure serves a wider interest as well as any personal interest. The tribunal must assess the worker’s genuine belief and its objective reasonableness. It must not substitute its own view.

The number of people affected is relevant but not automatically decisive. Relevant considerations may also include the nature and importance of the affected interests, the nature and scale of the wrongdoing, and the identity of the alleged wrongdoer. A disclosure concerning contractual rights may qualify, although tribunals should approach private workplace disputes cautiously. The worker’s public-interest belief need not be the predominant motive for making the disclosure.

The claimant, an estate agent employed by Chesterton Global Ltd, alleged that he had been dismissed and subjected to detriments for making protected disclosures. He said that the company was deliberately manipulating internal accounts so as to reduce commission payable to him and about 100 senior managers.

The employment tribunal upheld the whistleblowing claims, finding that the claimant reasonably believed that his disclosures were in the public interest. The Employment Appeal Tribunal dismissed the respondents’ appeal. The respondents appealed to the Court of Appeal.

The central issue was how the public-interest requirement inserted into section 43B(1) of the Employment Rights Act 1996 should apply where a disclosure concerns the worker’s own contractual interests and the similar interests of other workers.

1. The appeal was dismissed. The employment tribunal had reached a conclusion which was open to it. Any failure expressly to incorporate every relevant factual feature into its reasoning was immaterial because those features reinforced its conclusion.

2. Section 43B(1) of the Employment Rights Act 1996 requires the tribunal to determine whether the worker genuinely believed that the disclosure was in the public interest and, if so, whether that belief was reasonable. More than one view may reasonably be held on this broad-textured question. The tribunal must assess the worker’s view without substituting its own.

3. The statutory language draws an essential distinction between a disclosure serving only the worker’s private or personal interest and one serving a wider interest. A disclosure does not qualify merely because it serves the private interests of one additional person. Equally, there is no absolute rule that interests outside the workplace must be affected.

4. Whether a disclosure concerning a worker’s own contractual rights could reasonably be regarded as in the public interest depends on all the circumstances. Useful considerations include: the number of people whose interests are affected; the nature and importance of those interests; the nature and scale of the alleged wrongdoing, including whether it was deliberate; and the identity, size or prominence of the alleged wrongdoer. Numbers may sometimes be sufficient, but tribunals should be cautious because the amendment was intended to exclude ordinary private workplace disputes from enhanced whistleblower protection.

5. The worker need only hold the relevant public-interest belief. The precise reasons later advanced for that belief are evidential rather than substantive, and objective facts not articulated at the time may support its reasonableness. The belief need not be the worker’s predominant motive. Bad faith may affect compensation rather than liability.

6. The disclosure concerned alleged deliberate manipulation of accounts on a substantial scale, potentially affecting about 100 senior managers. The alleged wrongdoer was a substantial and prominent business. Those features supported the tribunal’s finding that the claimant’s public-interest belief was reasonable.

1. Court of Appeal (Civil Division): The respondents’ appeal was dismissed by [2017] EWCA Civ 979. The court upheld the conclusion that the claimant reasonably believed his disclosures were in the public interest.

2. Employment Appeal Tribunal: Supperstone J dismissed the respondents’ appeal from the employment tribunal on 8 April 2015. No neutral citation is stated in the judgment.

3. Employment tribunal: By a judgment sent on 4 June 2014, the tribunal upheld the claimant’s protected-disclosure dismissal and detriment claims.