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Whistleblowing: EAT confirms low threshold for public interest test

Employees can be protected under whistleblowing legislation for raising a contractual matter which affects a small group of employees of the same employer.

The Employment Appeal Tribunal (EAT) confirmed in the recent decision of Underwood v Wincanton that the ‘public interest’ test in the whistleblowing legislation can be satisfied by a small sub-section of the public. This sub-section may be comprised solely of employees employed by the same employer who have the same interest in the matter as the Claimant personally.

The law

Since 25 June 2013, a requirement was introduced to the relevant legislation that, in order for a whistleblower to benefit from protection against a dismissal or detriment, he or she has to reasonably believe they are making the disclosure 'in the public interest' (in addition to it showing specified wrongdoing). 

The public interest requirement was introduced to reverse the effects of a previous decision in the case of Parkins v Sodexho. In that case, the EAT had held that a disclosure about the breach of an employee’s own contract of employment could satisfy the relevant tests and be protected by the whistleblowing legislation. 

The impact of the Parkins v Sodexho decision was to widen the scope of the whistleblowing protection beyond that intended by the legislation. In response, the government introduced the ‘public interest’ test to rein in the protection offered.

Facts

The Claimant wrote a letter to his employer raising concerns that overtime was being allocated in breach of his employment contract so that some drivers were suffering a reduced income. The reason, according to the Claimant, appeared to be that those drivers were considered to be awkward by reason of their thorough safety checks of vehicles. This letter was signed by the Claimant and three of his colleagues.

The Claimant was subsequently dismissed by his employer and brought a claim in the employment tribunal stating, amongst other matters, that his dismissal was automatically unfair by reason of him making a protected disclosure (ie the letter raising concerns) under the whistleblowing legislation. 

Employment tribunal decision

The Regional Employment Judge struck out the automatic unfair dismissal claim on the grounds that there was 'no public interest' as this was a dispute between the Claimant and his employer about terms of employment. 

The fact that other employees were also affected was not sufficient to satisfy the 'public interest' test as it did not relate to or concern the public as a whole. 

The Claimant appealed. 

The EAT decision

Prior to the EAT decision came the ruling by the EAT in Chesterton Global Limited v Nurmohamed (which was the subject of our previous article). In that case it was held that it is not necessary to show that the relevant disclosure affects the public as a whole and that a smaller group (in that case, 100 employees of the same employer) could be sufficient. What is important is that the worker reasonably believed that the disclosure was in the public interest.

The EAT in the present case considered the Regional Employment Judge's approach in light of the Chesterton decision. The EAT held that there was no grounds suggesting that Chesterton had been wrongly decided, and, as a result, the Regional Employment Judge's decision could not stand. 

The EAT held that too narrow a view of the term 'public' had been taken. The term 'public' could refer to a sub-section of the general public, and may even be comprised solely of employees of the same employer employed on the same terms. Importantly, the EAT held that disputes about terms and conditions could constitute matters in the public interest. 

The EAT allowed the appeal. As a result, the automatic unfair dismissal claim could proceed to be determined by the employment tribunal along with the Claimant's other claims

Implications for employers

It seems that the government’s intention to reverse the effects of Parkins v Sodexho has not come to fruition. However, further clarification is expected in due course. The Chesterton case has been appealed and is due to be heard by the Court of Appeal in October 2016. 

Until then, employers should be mindful that an employee may be protected by the whistleblowing provisions where they make a disclosure about their terms and conditions which also affect other employees. Whether the employee is protected will be dependant on the individual facts of the disclosure.  

For more on the decision please click here

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at November 2015. Specific advice should be sought for specific cases. For more information see our terms & conditions on www.TLTsolicitors.com

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