Whistleblowing Public Interest Test Satisfied by Employee Raising Contractual Matter Affecting Group of Employees

The public interest requirement under the whistleblowing legislation may be satisfied where an employee raises a contractual matter affecting a group of employees.

Speedread

An employee who raises a contractual matter affecting a group of employees can be protected by whistleblowing legislation. The requirement that a worker must reasonably believe that a disclosure is made in the public interest can be satisfied where the disclosure affects a group of employees.

Facts

In Underwood v Wincanton plc, Mr Underwood and three other drivers signed a letter complaining about the unfair allocation of overtime, resulting in some drivers suffering reduced income. Mr Underwood was subsequently dismissed and he claimed that his dismissal was automatically unfair on whistleblowing grounds.

The employer argued that Mr Underwood had not made a protected disclosure. A worker must reasonably believe that their disclosure is made in the public interest. The employment judge agreed and struck out the claim. This was a dispute between Mr Underwood and his employer about terms of employment. The fact that it also affected other employees was not sufficient. There was no public interest.

Decision

Mr Underwood appealed. The Employment Appeal Tribunal (EAT) overturned the employment judge’s decision.

The case of Chesterton Global Limited v Nurmohamed was decided by the EAT after the employment judge gave his ruling. That case decided that the “public interest” requirement does no more than prevent a worker relying on a breach of his own employment contract where the breach is of a personal nature and has no wider public interest implications. The “public interest” requirement can be met by a relatively small group of people, and they may be employees employed by the same employer who have the same interest in the matter as the claimant personally.

The employment judge in Underwood had taken too narrow a view of the “public interest” requirement. He had failed to recognise that “the public” can refer to a subset of the general public, even if that subset comprises only persons employed by the same employer on the same terms. He had been wrong to conclude that a dispute about terms of employment cannot constitute matters in the public interest. The employment judge had therefore been wrong to strike out the claim and the claim was permitted to proceed to the employment tribunal.

Implications

In light of the EAT decision in the Chesterton case, the decision in this case not surprising. The Chesterton case has been appealed to the Court of Appeal and is due to be heard in October 2016. In the meantime, employers need to be aware that an employee who provides information about a breach of their employment contract may be protected by the whistleblowing legislation if the issue raised affects other workers as well.