Under whistleblowing legislation, workers who make a protected disclosure (also known as “blowing the whistle”) are protected from being subjected to a detriment by their employer on the grounds that they have blown the whistle and, if the worker is dismissed, then the dismissal will be automatically unfair if the reason (or principal reason) for it is that they have made a protected disclosure. For more information about what can constitute whistleblowing see Nicola’s article here.
As we have previously reported, changes to whistleblowing legislation in June 2013 introduced a new “public interest” test which meant that the worker making the disclosure must have a reasonable belief that it is in the public interest. The public interest requirement was introduced to close a loophole from the case of Parkins v Sodexho (2001) in which the Employment Appeal Tribunal (EAT) had held that whistleblowing protection covered someone who blows the whistle about a breach of their own contract of employment, even where the disclosure only concerns them personally and does not have any interest to the wider public.
Back in April, we reported on the EAT case of Chesterton Global Ltd (t/a Chestertons) and another v Nurmohamed (2015) in which it was confirmed that a relatively small group of 100 senior managers was a sufficient section of the public to satisfy the public interest test.
Now the position has developed yet further. Following a recent decision by the EAT in the case of Underwood v Wincanton plc (2015), workers may again be afforded protection under the whistleblowing provisions when making disclosures about breaches of their own employment contracts. In the Underwood case, a group of four lorry drivers had raised a complaint with their employer about the terms and conditions of their employment, in particular in relation to the allocation of overtime. One of the employees (Mr Underwood) was dismissed and he brought a claim on the grounds that his dismissal was automatically unfair because he had been dismissed for “blowing the whistle”.
The Employment Tribunal (ET), which heard the case three months before the EAT’s decision in Chesterton, struck out the claim on the basis that the dispute was not in the public interest.
The EAT, however, allowed Mr Underwood’s appeal and sent the case back to the ET to be heard. The EAT held that, following Chesterton, it was possible for a matter to be “in the public interest” even though it involved a dispute between a group of employees and their employer about terms and conditions of employment. It had been argued that this could not be the case – how could the interests of such a small group of workers amount to a ‘public interest’? However, although the EAT did not reach a conclusion as to whether the public interest test was met in Mr Underwood’s case, they did conclude that it was potentially possible for the test to be met where issues are raised by ‘a group of employees’ to their employer.
This begs the question of how small the group could be – could two employees raising a joint complaint be a ‘group’ and therefore qualify for the public interest test? And if two could qualify, why not one? If it were possible for an individual complainant to gain protection then we would be back full circle to Parkins v Sodexho!
Although the Chesterton case is being appealed to the Court of Appeal, it is not expected to be heard until October 2016, so until the outcome of that is known employees who raise disputes about the terms and conditions of their contracts may be afforded extra protection under whistleblowing legislation.
Whistleblowing issues are not always easy to identify and can require careful handling – it is always best to take advice if you are dealing with a potential whistleblowing issue, as a quick call to us could save a costly Tribunal claim later. If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).