Chesterton Global Ltd (trading as Chestertons) v Nurmohamed

For a disclosure to qualify under section 43B(1) of the Employment Rights Act 1996, the issue is whether the worker reasonably believed that making it was in the public interest. The tribunal need not decide that the disclosure was in fact of public interest.

The statutory requirement was introduced to exclude reliance on a purely personal contractual breach. It does not prevent protection where a worker reasonably believes that a breach of contract has wider public-interest implications. Whether an affected group is sufficiently public is fact-sensitive. A group of about 100 managers could satisfy the requirement.

The respondent, director of an estate agency office, alleged that management had manipulated accounts so as to reduce bonuses payable to more than 100 senior managers. He made disclosures to two senior managers and was subsequently dismissed and subjected to detriments.

The Employment Tribunal held that the disclosures were qualifying protected disclosures. It found that the respondent reasonably believed that the matter affected the senior managers and was in the public interest. The employers appealed only on the public-interest issue, following withdrawal of their challenge to the respondent’s reasonable belief that he was making protected disclosures.

1. Appeal dismissed. The Employment Tribunal made no error in holding that the disclosures satisfied the public-interest element of section 43B(1) of the Employment Rights Act 1996.
2. The statutory question is not whether the disclosure was objectively in the public interest. It is whether the particular worker reasonably believed that making it was in the public interest. The belief is subjective, but its reasonableness is assessed objectively. A disclosure may therefore qualify although the supposed wrongdoing, or the public interest in disclosure, proves to be absent.
3. The amendment made by section 17 of the Enterprise and Regulatory Reform Act 2013 was directed to reversing the effect of Parkins v Sodexho Ltd, [2002] IRLR 109. It was intended to prevent opportunistic reliance on a breach of a worker’s own contract which is purely personal and has no wider public-interest implications. It did not exclude disclosures concerning contractual breaches which reasonably engage such implications.
4. There is no statutory basis for treating a common contractual relationship between affected workers as fatal to the public-interest requirement. The sufficient size and character of the affected group are fact-sensitive. The Tribunal was entitled to find that the respondent reasonably believed the alleged manipulation affected the bonuses of 100 senior managers and had wider implications across the business. The employer’s private, rather than public, status was not determinative.

• Employment Appeal Tribunal: dismissed the employers’ appeal and upheld the Employment Tribunal’s conclusion that the respondent had made protected disclosures.
• Employment Tribunal (London Central): by a unanimous judgment sent on 4 June 2014, held that the respondent had been unfairly and automatically unfairly dismissed and subjected to detriments for making protected disclosures.