As of 2013 (the Enterprise and Regulatory Reform Act 2013) Claimants in whistle-blowing claims have to establish that the public interest disclosure that they rely upon was made “in the public interest”.
A recent Court of Appeal decision, Chesterton Global Limited & Another v Nurmohamed & Another [2007 EWCA Civ 979] has provided some additional insights as to what “in the public interest” means.
In this case, there was some debate as to whether or not the whistle-blower had made the public disclosure in the public interest or in the interests of senior management.
His employer argued the latter and that, as a consequence, he did not make his disclosure in the public interest.
The employers’ appeal to the EAT and then to the Court of Appeal were both dismissed.
At the Court of Appeal, Lord Justice Underhill approved of the approach which had been adopted by the EAT below him. In essence, he confirmed a fluid view as to what constitutes “in the public interest” and that there may be more than one reasonable view as to whether a disclosure was made in the public interest.
He also stated Tribunals must avoid substituting their own opinion as to whether a particular protected disclosure, in their view, was in the public interest.
Boost for whistle-blowers
What his Judgment emphasises is that, even when a protected disclosure may be more readily regarded as in the whistle-blower’s private interests, there may be other factors involved which also make it in the public interest. For example, the number of people potentially affected and the nature of the conduct disclosed.
The Judgment is a boost for whistle-blowers who should find it more easy to prove, if there was any doubt, that the protected disclosure that they made was made in the public interest, even if it is not obvious from the disclosure that it was.