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MICHAEL DUGGAN QC ON WHISTLEBLOWING, SELF INTEREST AND PUBLIC INTEREST: CHESTERTON GLOBAL LIMITED V MOHAMED NURMOHAMED, PUBLIC CONCERN AT WORK

Michael Duggan QC writes on the case of Chesterton Global Limited v Mohamed Nurmohamed, Public Concern At Work (intervener) [2017] EWCA Civ 979. It concerns the vexed question of good faith in public interest disclosures of whistleblowing. 

The Claimant was employed as Director of the Respondent’s Mayfair office until his dismissal after working for over five years. He brought an unfair dismissal claim, in which he asserted he was dismissed because he had made protected disclosures within the meaning of the Employment Rights Act 1996 with the result that the dismissal was automatically unfair by reference to section 103A of the Act. He also claimed for “ordinary” unfair dismissal by reference to section 98.  In addition, he claimed to have suffered various detriments, besides his dismissal, because he had made the same disclosures, contrary to section 47B of the Act. The Respondent admitted ordinary unfair dismissal but disputed the whistleblowing claims. His claims were upheld and the EAT dismissed an appeal.  On appeal to the CA, as Underhill LJ noted, the only live issue was:

“…whether the ET was entitled to find that the Claimant had made the disclosures in question in the reasonable belief that they were “in the public interest”, which is one of the elements in the definition of a protected disclosure.”

The matter at issue related to a change in commission which had been introduced to make it based more upon profitability. Against that change:

“…the Claimant monitored Chestertons’ internal accounts over the following months.  At a meeting on 14 August 2013 with Ms Patricia Farley, the director responsible for the London area, he demonstrated a number of what he said were discrepancies in the monthly accounts which appeared to show that the profitability of the Mayfair office was being artificially suppressed so as to reduce the level of commission payable.  Two examples to which the Tribunal referred (though the Claimant apparently gave others) were that a depreciation charge had been made which was higher than that budgeted for; and that a figure was included for “staff bonus” when none had been paid.  The Claimant described this to Ms Farley as “manipulating the accounts to the benefit of the shareholders”.  The Tribunal found that he genuinely believed that such manipulation was occurring and that his belief was reasonable – though it made it clear that it was making no finding that it was correct.

The Employment Tribunal recorded that “he told Miss Farley that this affected over 100 senior managers’ earnings and he believed the Respondent was deliberately misstating between £2 and £3 million of actual costs and liabilities throughout the entire office and department network.  We consider this points to the fact that the primary focus of his statements was that this affected over 100 senior manager’s earnings”.  As part of its reasoning the Tribunal asked the question: “Did the Claimant make the disclosures in the reasonable belief that they were in the public interest?”

To the above question, it answered:

“It is clear to us that it cannot mean something which is of interest to [Footnote i] the entirety of the public since it is inevitable from the kind of disclosures which arise from time to time such as disclosures about hospital negligence or disclosures about drug companies that only a section of the public would be directly affected.  With this in mind, it is our view that where a section of the public would be affected, rather than simply the individual concerned, this must be sufficient for a matter to be in the public interest.
148   In this case, the two potential groups of people who might be affected would be the 100 senior managers or anybody who relied on the accounts which had been incorrectly stated to the benefit of shareholders.”

 

The Tribunal concluded:

“Bearing all this in mind we conclude that the disclosures were made in the belief of Mr Nurmohamed at the time that it was in the interest of the 100 senior managers.  We conclude that that is a sufficient group of the public to amount to being a matter in the public interest.  We also conclude that that belief was reasonable.  The over inflation of the costs set against the office budgets would have decreased their profits and potentially reduced bonuses for all the senior managers.  We are cognisant that the person Mr Nurmohamed was most concerned about was himself and that the recent amendments to the public interest legislation mean that there must be a public interest question and not a personal one.  However, we are satisfied that Mr Nurmohamed did have the other office managers in mind.  He referred to the central London area for which Ms Farley was responsible and suggested to Ms Farley that she should be looking at other central London office accounts.  Therefore, we conclude that this aspect of the test is satisfied.”

The matter was appealed to the EAT and the Court of Appeal.

By section 43B, which was amended by section 17 of the 2013 Act, with effect from 25 June 2013, by the insertion of the words in italics, it is provided:

“In this Part a 'qualifying disclosure' means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following - … .”

Underhill LJ noted the comments made in Parliament regarding the amendment.  The Public Bill Committee had stated on 3 July 2012 (cols. 385-388),

“Setting out the issue that the Government seek to address might be helpful. The original aim of the public interest disclosure legislation was to provide protection to individuals who made a disclosure in the public interest—otherwise known as blowing the whistle. The clause seeks to make that public interest clear, and the hint is in the title of the original legislation, which was designed to deal with public interest disclosure—that is what we are talking about.” 

The Bill’s sponsor, Lord Borrie, said in the House of Lords:

‘… As I hope I have made clear, this measure will encourage people to recognise and identify with the wider public interest and not just their own private position

Underhill LJ made four preliminary points:

  • First, the tribunal thus has to ask (a) whether the worker believed, at the time that he was making it, that the disclosure was in the public interest and (b) whether, if so, that belief was reasonable.
  • Second, element (b) in that exercise requires the tribunal to recognise, as in the case of any other reasonableness review, that there may be more than one reasonable view as to whether a disclosure was in the public interest; and that is perhaps particularly so given that that question is of its nature so broad-textured. “All that matters is that the Tribunal should be careful not to substitute its own view of whether the disclosure was in the public interest for that of the worker. That does not mean that it is illegitimate for the tribunal to form its own view on that question, as part of its thinking – that is indeed often difficult to avoid – but only that that view is not as such determinative.”
  • Third, the necessary belief is simply that the disclosure is in the public interest. On this issue, Underhill LJ noted that:

“That means that a disclosure does not cease to qualify simply because the worker seeks, as not uncommonly happens, to justify it after the event by reference to specific matters which the tribunal finds were not in his head at the time he made it.  Of course, if he cannot give credible reasons for why he thought at the time that the disclosure was in the public interest, that may cast doubt on whether he really thought so at all; but the significance is evidential not substantive.  Likewise, in principle a tribunal might find that the particular reasons why the worker believed the disclosure to be in the public interest did not reasonably justify his belief, but nevertheless find it to have been reasonable for different reasons which he had not articulated to himself at the time: all that matters is that his (subjective) belief was (objectively) reasonable.”

While the worker must have a genuine (and reasonable) belief that the disclosure is in the public interest, that does not have to be his or her predominant motive in making it.

  • The last point brings into account sections 49 (6A) and 103 (6A), which provide that compensation may be reduced if the disclosure is made in bad faith so that the draftsman contemplated that a disclosure which was made in the reasonable belief that it was in the public interest might nevertheless be made in bad faith, since otherwise the new sections 49 (6A) and 123 (6A) would never bite.

The central issue

The central issue was put by Underhill LJ as:

The particular issue that arises in this appeal is whether a disclosure which is in the private interest of the worker making it becomes in the public interest simply because it serves the (private) interests of other workers as well. 

The employer argument was that in order for a disclosure to be in the public interest, the interests served have to “extend outside the workplace”; it is not enough that there were some 100 managers that were also affected. The contrary argument was that it was highly desirable that there be a bright-line rule enabling workers and those advising them to know with reasonable certainty when a disclosure would be protected.  That could only be achieved by treating any disclosure as being “in the public interest” if it is in the interests of anyone else besides the worker making the disclosure.

These approaches were rejected. Underhill LJ stated:

It is in my view clear that the question whether a disclosure is in the public interest depends on the character of the interest served by it rather than simply on the numbers of people sharing that interest.  That is in my view the ordinary sense of the phrase “in the public interest”; but if there were any doubt about the matter the position is clear from the legislative history.  The essence of the “Parkins v Sodexho error” which the 2013 Act was intended to correct was that a worker could take advantage of “whistleblower protection” where the interest involved was personal in character.  Such an interest does not change its character simply because it is shared by another person.  The advantage of achieving a bright line cannot be obtained by distorting the natural meaning of the statutory language.

The other extreme was also rejected, since:

“The statutory criterion of what is “in the public interest” does not lend itself to absolute rules, still less when the decisive question is not what is in fact in the public interest but what could reasonably be believed to be.  I am not prepared to rule out the possibility that the disclosure of a breach of a worker’s contract of the Parkins v Sodexho kind may nevertheless be in the public interest, or reasonably be so regarded, if a sufficiently large number of other employees share the same interest.  I would certainly expect employment tribunals to be cautious about reaching such a conclusion, because the broad intent behind the amendment of section 43B (1) is that workers making disclosures in the context of private workplace disputes should not attract the enhanced statutory protection accorded to whistleblowers – even, as I have held, where more than one worker is involved.  But I am not prepared to say never.  In practice, however, the question may not often arise in that stark form.  The larger the number of persons whose interests are engaged by a breach of the contract of employment, the more likely it is that there will be other features of the situation which will engage the public interest.”

The approach to be adopted was therefore stated to be as follows:

“In a whistleblower case where the disclosure relates to a breach of the worker’s own contract of employment (or some other matter under section 43B (1) where the interest in question is personal in character [Footnote ii], there may nevertheless be features of the case that make it reasonable to regard disclosure as being in the public interest as well as in the personal interest of the worker.  [The] example of doctors’ hours is particularly obvious, but there may be many other kinds of case where it may reasonably be thought that such a disclosure was in the public interest.  The question is one to be answered by the Tribunal on a consideration of all the circumstances of the particular case, but [the] fourfold classification of relevant factors which I have reproduced at para. 34 [Footnote iii] above may be a useful tool.  As he says, the number of employees whose interests the matter disclosed affects may be relevant, but that is subject to the strong note of caution which I have sounded in the previous paragraph.”

In the present case:

“the disclosure was of what was said to be deliberate wrongdoing, and the alleged wrongdoing took the form of mis-statements in the accounts to the tune of £2m-£3m.  If the accounts in question were the statutory accounts, even of a private company, the disclosure of such a mis-statement would unquestionably be in the public interest.  The fact that the accounts in question were only internal makes the position less black-and-white; but internal accounts feed into the statutory accounts, and we are dealing here with a very substantial and prominent business in the London property market.  It is debatable whether the Tribunal, which was navigating uncharted waters, fed those factors into its assessment that it was reasonable to regard disclosure as being in the public interest even though it did not expressly say so.  But, even if it did not, I believe that they would only have reinforced the conclusion to which it came based on the numbers alone, so that any error of law in its reasoning was immaterial.”

It was therefore, not just a question of the 100 managers who were also affected but other factors that were taken into account.

Comment

The amendments made in 2013 were intended to reverse the effect of Parkins v Sodexho [2001] UKEAT 1239/00, [2002] IRLR 109 and, indeed, it may seem strange to the lay person that public interest disclosure could come into play when the disclosure was only about the person’s own contract. The requirement that a disclosure be in the public interest makes explicit what should be obvious. But the difficulty still has to be met; what of the case where the disclosure is in the interest of the person making it? The approach of the Court of Appeal, based on numbers, is to find some other factor or factors which strengthened the argument that the public interest was engaged. Numbers alone would not be enough, whether 2, 200 or 2000 who are affected. Some further quality appears to be needed.

Perhaps the safest approach to the public interest is as follows:

  1. Disclosures which are in the interest of the person making the disclosure will not be in the public interest if there is nothing more than the person’s own interest. This, disclosures about the person’s own contract of employment are unlikely to come within the legislation.
  2. Disclosures where other workers are affected may be in the public interest, but numbers are not likely to be sufficient in itself. Some other factor should be present.
  3. Disclosures about matters that are in the interest of the wider public, in the sense of not just being of interest to the discloser and work colleagues, should be considered in the context of the factors noted by the Court of Appeal.
  4. As far as b and c, are concerned, it could be argued that numbers are irrelevant and it is the nature of the interest that is to be considered as opposed to how many are affected.

It is apparent, however, that the mere fact that the discloser has something to gain does not prevent a disclosure from being in the public interest where there are other factors which give the disclosure a quality of being in the interest of the public; to paraphrase the Taylor Review “Ultimately, if it looks and feels like [whistleblowing], it should have the status and protection of [whistleblowing].”

Footnotes:

  1. Underhill LJ notes (!) “The phrase “of interest to” is not quite right, because it suggests what the public might find interesting, which is of course a wholly different matter.  But it is clear from the rest of the paragraph that this was only a verbal slip.”
  2. Underhill LJ stated that “Although disclosures tending to show breaches of the worker’s own contract are the paradigm of disclosures of a “private” or “personal” character, they need not be the only kind: see the Minister’s reference to disclosures “of minor breaches of health and safety legislation … of no interest to the wider public”.”
  3. the numbers in the group whose interests the disclosure served;
    1. the nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed – a disclosure of wrongdoing directly affecting a very important interest is more likely to be in the public interest than a disclosure of trivial wrongdoing affecting the same number of people, and all the more so if the effect is marginal or indirect;
    2. the nature of the wrongdoing disclosed – disclosure of deliberate wrongdoing is more likely to be in the public interest than the disclosure of inadvertent wrongdoing affecting the same number of people;
    3. the identity of the alleged wrongdoer… “the larger or more prominent the wrongdoer (in terms of the size of its relevant community, i.e. staff, suppliers and clients), the more obviously should a disclosure about its activities engage the public interest”.

 

Posted: 19.07.2017 at 09:56
Tags:  Comments  Employment Law
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