In Underwood v Wincanton plc UKEAT/0163/15, the Employment Appeal Tribunal (EAT) considered how to interpret the words "in the public interest" for the purposes of determining whether or not there had been a protected disclosure. In doing so it held that a dispute between an employer and four employees about the contractual terms of their employment was a matter capable of being in the public interest.

Background

Under section 43B(1) of the Employment Rights Act 1996, in order to be protected against detriment or dismissal, a worker must have made a qualifying disclosure. This is any disclosure of information which, in the reasonable belief of the worker making it, is made in the public interest and tends to show that one or more of the six specified types of wrongdoing (including a failure to comply with any legal obligation) has taken place. It does not matter whether the disclosure turns out not to be true so long as the worker subjectively believes it to be true.

For many years there was no "public interest" test in the legislation. In June 2013, changes were made to add the words "in the public interest". This was intended to reverse the effect of Parkins v Sodexho Ltd [2002] IRLR 109, in which the EAT held that the definition of a qualifying disclosure was broad enough to cover a breach of the whistleblower's own contract of employment. This case fundamentally changed the nature of the whistleblowing legislation, widening its scope beyond what had originally been intended. 

The EAT in Chesterton Global Ltd v Nurmohamed UKEAT/0335/14 considered the meaning of "public interest" in the amended legislation and held that it was not necessary to show that a disclosure was of interest to the public as a whole, as it is inevitable that only a section of the public will be directly affected by any given disclosure. A relatively small group (in this case, 100 senior managers) could be sufficient to satisfy the public interest test. 

Facts

Mr Underwood was an HGV driver with Wincanton plc. In November 2013 Mr Underwood, together with three of his colleagues, submitted a written complaint regarding their terms and conditions of employment, including the way in which overtime was allocated among drivers. Mr Underwood was dismissed in June 2014. 

Employment tribunal decision

Following his dismissal, Mr Underwood issued an employment tribunal (ET) claim in which he submitted that he had made a protected disclosure and that his dismissal was automatically unfair.

Mr Underwood’s representative provided written submissions, at the request of the ET, in which vague reference was made to the fact that some of the drivers who were granted less overtime had issues regarding the safety and road-worthiness of vehicles, the implication being that there may be a wider public interest in the case relating to road safety. However, this was not expressly stated or developed as an argument in the case. 

The employment judge struck out the claim, holding that a dispute between an employer and employee relating to terms of employment is not something that the public are affected by, directly or indirectly, and that it was not reasonable for Mr Underwood to believe that it was a matter of public interest.

The ET decision in this case was made before the EAT’s decision in Chesterton. Mr Underwood appealed to the EAT.

EAT decision

The EAT first looked at whether there were any grounds for distinguishing Chesterton and concluded there were not. The case of Chesterton involved allegations of fraud, which the EAT noted was self-evidently a matter of public interest. However, although only implicit in the Underwood claim, there was a suggestion that those making the disclosure had been raising concerns of vehicle safety and road-worthiness, which raised wider issues of road safety and which the EAT noted might also be thought to be a matter of public interest.

The EAT went on to consider the various grounds of appeal. First, it considered whether the ET had applied too narrow a definition of “public” when applying the “public interest” test. It was clear from Chesterton that “public” could be a subset of the public, “even if that subset comprised persons employed by the same employer on the same terms”. Therefore, in holding that a dispute between Mr Underwood and his fellow employees and Wincanton could never be said to be in the public interest, the ET had plainly applied too narrow a definition of "public".

Finally, in relation to the ET's ruling on “reasonable belief”, the EAT noted that in Chesterton, it was held that a matter between employees and their employer, where mutuality of obligation existed, was capable of being a matter within the public interest. It followed that an employee could reasonably hold the belief that a disclosure relating to such matters could be within the public interest and the ET's conclusion on this point could not be sustained. 

Comment

As the employment judge noted, the nature of the disclosure in this case fell “squarely within the provisions of the Parkins v Sodexho case in that it is a dispute between the claimant and the respondent with reference to the terms of employment existing between the claimant and the respondent.” The judge was clear in his views that disclosures of this nature could not be a matter of "public interest". Given Parliament's intention in amending the legislation, it is hard not to have some sympathy with this position. However, it was clear following the case of Chesterton that this view could not stand. The ET judge took too narrow a view of the term “public”, failing to recognise that it could refer to a subset of the general public, even one comprised solely of employees of the same employer.

Chesterton is being appealed to the Court of Appeal but is not due to be heard until 11 or 12 October 2016. In the meantime, it is likely that further cases involving individual contractual disputes will be held as being within the public interest following this decision, even though the decision appears to be inconsistent with the purpose behind the June 2013 changes to the whistleblowing legislation, which were intended to prevent employees seeking whistleblowing protection in relation to matters regarding their own terms and conditions of employment.