The Employment Appeals Tribunal has ruled that a complaint about contractual matters can now be in the "public interest”, under the new whistleblowing provisions, even if it only affects a relatively small group of employees (Underwood v Wincanton Plc 2015).
The Claimant in the case asserted that he had made a protected disclosure and was then subjected to a detriment by his employer. The disclosure was a written complaint made by him and three other lorry drivers that overtime was not being distributed fairly, in breach of their contracts of employment.
This also comes before its decision in Chesterton Global Ltd v Nurmohamed, concerning an employee making a disclosure about contractual matters where 100 senior managers were affected. The EAT found that provided a section of the public, rather than simply the individual, was concerned, this was sufficient to meet the test. The Chesterton case is the subject of an appeal to the Court of Appeal, listed for October 2016.
Julie Sabba, an associate in our employment team, comments:
“The wide definition given here to what is “in the public interest” seems to undermine the initial intention behind the legislative change. Once the appeal for Chesterton has been heard, employers will have a clearer idea of the position but in the meantime should rely on robust grievance procedures for employees who have concerns regarding their contract, or the way it is being implemented.”
Protection for whistleblowers was introduced by the Public Interest Disclosure Act 1998 (PIDA), which amended the Employment Rights Act 1996 (ERA 1996). The ERA 1996 protects employees and workers from being dismissed or subjected to detriment because they have made a protected disclosure. Relevant individuals can rely upon the legislation, regardless of length of service. Various requirements must be met in order for a disclosure to be considered a “qualifying disclosure”.
The ERA was amended on 25 June 2013 to require a qualifying disclosure to be made in the public interest. Essentially, the change was introduced to prevent employees using the legislation to complain about a breach of their own employment contract, often using this route to circumvent the 2 years‟ qualifying service”, necessary to make an unfair dismissal claim.
In overturning the employment tribunal's decision, the EAT recognised that the employment tribunal's judgment had been given before any real guidance as to the meaning of "public interest".
