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Disclosures about an employee’s terms and conditions of employment may fall within the “public interest” requirement for whistleblowing
03 November 2015

In the recent case of Underwood v Wincanton plc, the EAT held that a dispute between four employees and their employer concerning the terms and conditions of their employment contract could amount to a protected disclosure and be a matter capable of being in the public interest.

The facts

Mr Underwood was dismissed from his job as an HGV driver with Wincanton plc in June 2014. Following his dismissal, he issued a claim in which he submitted that a complaint he had made in November 2013 amounted to a protected disclosure under section 43B(1)(b) ERA 1996 and that his dismissal was therefore automatically unfair. In that complaint, Mr Underwood and three other colleagues had complained, along with other issues, about the way in which overtime was allocated.

Addressing why the complaint was in the public interest, Mr Underwood referred to the fact that some of the drivers whom had been granted less overtime had raised concerns about some of the vehicles’ safety and road-worthiness. The tribunal struck out the claim, stating that the claim concerned a dispute regarding Mr Underwood’s terms and conditions of employment and could therefore not amount to being within the public interest.

Mr Underwood appealed to the EAT.

Decision

The EAT allowed the appeal, and considered the Chesterton Global Ltd v Nurmohamed case when dealing with Mr Underwood’s claim. In Chesterton, the EAT considered the meaning of “public interest” and concluded that it is only necessary to show a disclosure was of interest to some of the public, and not the public as a whole. In Underwood, they noted that the safety and road worthiness of vehicles could be considered as a matter of public interest, and argued that the tribunal had applied too narrow a definition of “public” when applying the test. The Chesterton case had clearly shown that “public” in this context could mean a small number of the “public”, even if that number is made up entirely of employees under the same employer, with the same terms.

The EAT also confirmed that the tribunal’s finding that disputes relating to the terms and conditions of employment couldn’t amount to a matter concerning public interest was not in line with Chesterton, and was therefore a misdirection.

The case would therefore be allowed to proceed to hearing by tribunal.

Conclusion

This decision highlights that individual contractual disputes are therefore potentially capable of fulfilling the public interest test under whistleblowing legislation. Whilst this decision seems inconsistent with the June 2013 changes to section 43B(1) of the Employment Rights Act 1996, it is likely that further cases concerning disputes between employees and employers regarding the terms and conditions of their employment may satisfy  the public interest test following the decision in Chesterton and Underwood. The Chesterton case is however the subject of an appeal to the Court of Appeal (listed for October 2016) and so we await the outcome.

In the meantime, it is essential for employers to take any complaints seriously and make sure managers are fully trained so they can spot a whistleblowing disclosure and act accordingly. Companies should also have whistleblowing policies to manage disclosures effectively.

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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