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Complaint about contractual term can be a disclosure in the public interest

Whistleblowing legislation was amended for disclosures made on or after 25 June 2013 so that they must be made “in the public interest”.

Whistleblowing legislation was amended for disclosures made on or after 25 June 2013 so that they must be made “in the public interest”. This was to ensure that a worker cannot rely on a breach of his or her own employment contract where there are no wider public interest implications. Earlier this year in Chesterton Global Ltd and anor v Nurmohamed, the EAT held there is no requirement to show that a disclosure was of interest to the public as a whole, as it is usual that only a section of the public will be affected by alleged wrongdoing. Therefore alleged malpractice involving accounting irregularities which could affect the income of 100 managers was “in the public interest”.

In  Underwood v Wincanton plc, the EAT had to consider whether the Chesterton principle applied where a complaint was made about unfair allocation of overtime because workers were allegedly being penalised for carrying out stringent vehicle safety checks.

Underwood (U) claimed automatically unfair dismissal and detriment for having made a protected disclosure in a letter of complaint submitted by him and three other drivers. The letter alleged unfair distribution of overtime hours between drivers at the same depot resulting in overtime being withheld specifically from those drivers who were seen to be awkward because they were scrupulous about the safety and roadworthiness of their vehicles. This resulted in reduced income. U argued that the employer had allegedly breached the implied duty not act arbitrarily, capriciously or inequitably, thereby breaching a legal obligation under S.43(1)(b) of the Employment Rights Act 1996.

An employment judge struck out the claim on the ground that it had no reasonable prospect of success, because such a complaint, concerning only a group of workers with an identical grievance about particular terms of their contracts, could not be “in the public interest”. However, he did so before the EAT’s decision Chesterton was published.

The EAT upheld U’s appeal. Although the decision in Chesterton was the subject of an appeal to the Court of Appeal (listed for October 2016) it should meanwhile be followed. The underlying principles in Chesterton could not be distinguished from this case. Chesterton concerned a complaint of alleged accounting irregularities which affected the income of 100 senior managers and here the suggestion was that employees were being penalised by having overtime withheld for being too scrupulous when carrying out vehicle safety checks, thereby reducing their income. Given the Chesterton principles the employment judge had taken too narrow a view of the word 'public', as it can mean a group of employees and had erred in deciding that a complaint about terms and conditions of employment could not constitute matters in the public interest. The claim would therefore be allowed to proceed.

The case highlights the difficulties in deciding whether a matter is solely about a personal contractual issue or one which affects a group of employees. However, until the appeal is heard in Chesterton, the safest course of action for employers is to treat any grievance about an alleged wrongdoing, which could come within one or more of the six specified types qualifying disclosures in S.43B(1) of the Employment Rights Act 1996, and which negatively impacts on a group of employee’s terms and conditions, as a protected disclosure. The other interesting aspect of this case is that being penalised for checking the safety and roadworthiness of vehicles to be driven on public roads could be judged to be in the wider public interest, but this particular point was not pursued.

Content Note

The aim is to provide summary information and comment on the subject areas covered. In particular, where employment tribunal and appellate court cases are reported, the information does not set out full details of all the facts, the legal arguments presented by the parties and the judgments made in every aspect of the case. Click on the links provided to access full details. If no link is provided contact us for further information. Employment law is subject to constant change either by statute or by interpretation by the courts. While every care has been taken in compiling this information, SM&B cannot be held responsible for any errors or omissions. Specialist legal advice must be taken on any legal issues that may arise before embarking upon any formal course of action.

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