Posted on Oct 30, 2015
In order to be protected against detriment or dismissal under the whistleblowing legislation, a worker must have made a disclosure, which demonstrates that one or more of six types of wrongdoing have taken place, is taking place or is likely to take place (section 43B(1), Employment Rights Act 1996) AND which is in the public interest.
The requirement for whistleblowers to demonstrate a reasonable belief that their disclosure is in the public interest came into force in April 2013 and was designed to ensure that the whistleblowing legislation only provides protection in relation to matters of genuine public interest. The purpose of this was to reverse the effect of Parkins v Sodhexo Ltd, in which the EAT held that a protected disclosure could be made about an actual or alleged breach of an employment contract, i.e. a matter which is not of the wider public interest. The government felt that this case fundamentally changed the nature of the whistleblowing legislation, widening its scope beyond what was originally intended.
Despite the changes in the case of Underwood v Wincanton plc, the Employment Appeal Tribunal ruled that a complaint made by four employees about their terms and conditions of employment was in the public interest and therefore constituted protected disclosure.
Mr Underwood was an HGV driver with Wincanton plc. In November 2013, Mr Underwood, together with three of his colleagues, submitted a written complaint, regarding their terms of employment. The claims included a complaint about the way in which overtime was allocated among drivers. Mr Underwood was dismissed from his post in June 2014.
Following his dismissal, Mr Underwood issued a claim in which he submitted that the November 2013 complaint amounted to a protected disclosure, meaning that his dismissal was automatically unfair.
The Tribunal struck out the claim, holding that and he was not entitled to seek whistleblowing protection because his complaint related to a dispute between Mr Underwood and Wincanton - not an issue the public was directly or indirectly affected by.
Mr Underwood then appealed to the EAT.
The EAT allowed the appeal, noting that the Tribunal had not had the benefit of the EAT's decision in Chesterton Global Ltd v Nurmohamed when considering whether to strike out the claim. In the Chesterton case, the EAT held that it is not necessary to show that a disclosure was of interest to the public as a whole and ruled that a relatively small group (100 senior managers, in that case) may be sufficient to satisfy the public interest test.
The EAT considered that the Tribunal in this case had applied too narrow a definition of "public" when applying the "public interest" test as it was clear from Chesterton that "public" could be constituted by a subset of the public, "even if that subset comprised persons employed by the same employer on the same terms".
This decision and the decision in Chesterton appear to be inconsistent with the purpose of the 2013 changes to ensure that the whistleblowing legislation only provides protection in relation to matters of genuine public interest. Indeed, the Tribunal noted that the nature of the disclosure in this case fell "squarely within the provisions of the Parkins v Sodexho case in that it is a dispute between the claimant and the respondent with reference to the terms of employment existing between the claimant and the respondent."
Chesterton is being appealed to the Court of Appeal but is not due to be heard until October 2016. In the meantime, it is likely that further cases involving individual contractual disputes will be held as being within the public interest following this decision. Accordingly, employers should ensure they address concerns about terms and conditions appropriately and take advice if they have concerns about internal complaints and potential whistleblowing.