Daniel Barnett: “Can a disclosure be made in the ‘reasonable belief it is in the public interest’ if it relates to a contractual dispute affecting a group of staff, and not the wider public? Yes, held the EAT in Chestertons v Nurmohamed.
The whistleblower, a director in the Chestertons’ estate agency’s Mayfair office, made a protected disclosure by complaining that it was overstating costs for its London office, thus driving down the bonuses for him and 100 senior managers.
The employment tribunal found that the disclosure was made with a reasonable belief that it was ‘in the public interest’, and the Employment Appeal Tribunal upheld the decision.
The EAT stated that an individual contractual dispute would not normally satisfy the public interest test (following the reversal ofParkins v Sodexho by the Enterprise and Regulatory Reform Act 2013) but a disclosure relating to a relatively small group of people may do so; what is sufficient is necessarily fact-sensitive.
The purpose of the statute is to encourage responsible whistleblowing, and the public interest test can be satisfied even where the basis of the disclosure is wrong and/or there was no public interest in the disclosure, provided that the worker’s belief that the disclosure was made in the public interest was objectively reasonable. The ‘public interest’ requirement did no more than prevent a worker from relying upon a breach of his own contract of employment where the breach is of a personal nature and there are no wider public interest implications
Thanks to Ed McFarlane of Deminos HR for preparing this case summary