Chesterton Global Ltd v Nurmohamed

The Court of Appeal considered the meaning of the phrase "in the public interest" added to the definition of a "qualifying disclosure" in section 43B of the Employment Rights Act 1996 by the Enterprise and Regulatory Reform Act 2013. The court held that the tribunal must assess (1) whether the worker genuinely believed the disclosure to be in the public interest and (2) whether that belief was reasonable. The court rejected a rigid rule that a disclosure is in the public interest simply because it benefits any person other than the discloser, but also rejected a categorical rule that multiplicity of affected workers can never be relevant. The correct approach is fact‑sensitive: tribunals should consider all relevant circumstances (including number of affected persons, nature and seriousness of the interest affected, character of the alleged wrongdoing and identity/prominence of the wrongdoer) and not substitute their own view for a worker's reasonable belief. Applying that approach, the tribunal’s finding that the claimant reasonably believed his disclosures were in the public interest was not vitiated by error of law, and the appeal was dismissed.

Background and parties. The claimant, an estate agent employed by Chesterton Global Ltd, claimed dismissal and other detriments were caused by protected disclosures. He relied on the whistleblower provisions in the Employment Rights Act 1996 (notably the amended definition of "qualifying disclosure" in section 43B and the automatic unfair dismissal provision in section 103A), and brought claims against Chestertons and its HR director. The employment tribunal upheld the whistleblowing and detriment claims. The Employment Appeal Tribunal dismissed the respondents' appeal. The respondents appealed to the Court of Appeal.

Nature of the claim / relief sought. The claimant sought a finding that his dismissal was automatically unfair under section 103A of the Employment Rights Act 1996 because he had made protected disclosures, and sought remedies for dismissal and other detriments under the whistleblowing provisions.

Issues framed by the court.

• Whether the claimant had made the disclosures alleged (factual issue) — not in dispute on this appeal.
• Whether the disclosures were "protected", in particular whether they were made "in the public interest" as required by section 43B(1) (the single issue on this appeal).
• Whether the tribunal erred in law in finding that the claimant reasonably believed his disclosures were in the public interest.

Court’s reasoning. The court explained the twofold test derived from the statute and prior authority: the tribunal must ask whether the worker believed at the time the disclosure was in the public interest, and whether that belief was reasonable. The court rejected a mechanistic rule proposed by the intervener that any disclosure benefiting anyone other than the worker is automatically in the public interest. It also refused to adopt the opposite absolute rule that the mere fact multiple workers share the same private interest can never convert the interest into a public interest. Instead the court endorsed a contextual, fact‑sensitive inquiry and endorsed factors advanced by counsel as potentially useful (numbers affected; nature and extent of the interests affected; nature of the wrongdoing; identity/prominence of the wrongdoer), with caution about overreliance on any single factor. Applying that approach to the tribunal’s reasoning and findings (which included that the alleged wrongdoing was deliberate and involved substantial misstatements in internal accounts affecting many managers), the court concluded any arguable error in reasoning was immaterial and the tribunal’s conclusion was open to it. The appeal was dismissed.

Wider context. The court noted the amendment to section 43B was intended to correct Parkins v Sodexho and to draw a distinction between purely personal grievances and disclosures serving a wider public interest, but left scope for tribunals to find public interest in some workplace matters where circumstances justify it.

This was an appeal from the Employment Appeal Tribunal. The Court of Appeal dismissed the appeal. The court held that the public interest element in section 43B requires a twofold enquiry (subjective belief and objective reasonableness), that the question is fact‑sensitive, and that mere multiplicity of affected employees does not automatically make a disclosure public in character but may be relevant in context. Applying that test to the facts, the tribunal’s finding that the claimant reasonably believed his disclosures were in the public interest was not vitiated by error of law.

Employment Tribunal judgment (upholding whistleblowing and detriment claims) sent to parties 4 June 2014; Employment Appeal Tribunal (Supperstone J) dismissed the respondents' appeal on 8 April 2015; Court of Appeal judgment [2017] EWCA Civ 979 (10 July 2017) dismissing the respondents' appeal.