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Whistleblowing Rights – The new personal side of the Public Interest requirement

04/12/2015 | Adam Gray

The Employment Appeal Tribunal (“EAT”) has recently ruled in the case of Underwood v Wincanton plc (2015) that a dispute between four employees (together “Underwood”) and their employer (“Wincanton”) over the terms of their employment contracts could amount to a public interest that warranted protection under the Public Interest Disclosure Act 1998 (the “PIDA”).

Facts and Background 

PIDA provides employees with protection against dismissal, victimisation and other detriments in the event that they report (i.e. blow the whistle) on certain types of activities to defined “prescribed persons”, one of which is their employer.

To secure the protection of the legislation and seek legal redress under PIDA, employees must ensure:

  • they make one of the six designated types of protected “qualifying disclosure”;
  • they hold a reasonable belief that the information disclosed demonstrates malpractice; and
  • that their disclosure is “in the public interest”.

One type of qualifying disclosure is a “failure to comply with a legal obligation/requirement”. In the instant case, Underwood (the Claimant) was a haulage driver working at Wincanton’s depot. He and three other colleagues had submitted a complaint to Wincanton (their employer) about the method used to distribute overtime amongst the drivers under their employment contracts; namely that drivers who were conscientious about vehicle safety were being denied extra hours. Subsequently, Underwood was dismissed.  He did not have the requisite 2 years’ service to bring a claim for unfair dismissal.

Underwood brought a claim however that, among other things, the complaint to his employer was a protected disclosure and, as a result of it, his dismissal was automatically unfair.  The Employment Tribunal (“ET”) judge held that the operation of the employment contract between the employer and an individual employee could not meet the public interest test and Underwood’s claim was struck out. He subsequently appealed.

Overturning the ET’s decision, the EAT recognised that the ET’s judgment had been given before:

  • any substantive guidance on the meaning of “public interest” had been given; and
  • the conclusion of Chesterton Global Ltd v Nurmohamed (“Chesterton”) in which it was held that the complaints of 100 managers in relation to their employment contracts was a section of the public large enough to meet the public interest test.

Outcome 

In light of the above guidance given in Chesterton, the EAT held that “public”, as defined in section 43B(1) of the Employment Rights Act, could constitute a subsection of the public (i.e. not just the public at large). It was also stated that the disclosure of contractual disagreements between an employer and employee could therefore potentially be “in the public interest”.

Comment 

Previously, it was believed that any dispute under PIDA, which was based on a breach of employment contract issue (under the qualifying disclosure heading of “breach of a legal obligation”), would fail to be “in the public interest” and so would not be covered by the legislation.  This decision however shows that a disclosure relating to a contractual dispute can potentially be in the public interest if the number of employees affected constitutes a sufficient portion of the public. In light of this case, HR professionals should be aware that it is possible for employees to bring whistleblowing related claims based on their own contracts. It should also be noted that any employee able to demonstrate that his/her dismissal resulted from a protected disclosure will:

  • not need the usual two years’ requisite service to bring a claim of unfair dismissal (this is a ‘day one’ employment right);
  • be deemed to have been automatically unfairly dismissed; and
  • be eligible to receive uncapped compensation.

This article should not be taken as definitive legal advice on any of the subjects covered. If you do require legal advice in relation to any of the above, please contact Adam Gray of these offices on 020 7955 1518 or by e-mail at adamg@rosenblatt-law.co.uk

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