The Employment Appeal Tribunal (EAT) has held that a dispute between an employer and a group of four em- ployees relating to their terms and conditions of em- ployment was capable of being a protected disclosure entitling them to seek protection against unfair dismiss- al under whistleblowing legislation. The dispute was a matter capable of being “in the public interest”.

Background

In order to bring a whistleblowing claim, a worker must be able to demonstrate that they reasonably believed that their disclosure was “in the public interest”.

In this case, Mr Underwood was an HGV driver and together with three of his colleagues, submitted a writ- ten complaint regarding the way in which overtime was allocated among drivers. Some time later, Mr Under- wood was dismissed and claimed that his dismissal was automatically unfair due to his complaint being a protected disclosure. He submitted that some of the drivers who were granted less overtime were seen to be awkward because they had raised concerns regard- ing the safety of vehicles. There was therefore a wider public interest in the case relating to road safety.

The Tribunal rejected Mr Underwood’s claim stating he could not have believed his disclosure was “in the public interest”. However, in a subsequent case (Ches- terton Global v Nurmohamed) the EAT held that it was not necessary to show that a disclosure was of interest to the public as a whole, as only a section of the public will be directly affected by any given disclosure. In this case, a group of 100 senior managers was sufficient to satisfy the public interest test.

What does this mean?

The EAT followed the case of Chesterton and allowed Mr Underwood’s appeal. It held that the definition of the public could be a subset of persons employed by the same employer on the same terms and therefore hav- ing the same interest in a matter raised by another em- ployee. Therefore, a dispute between Mr Underwood and his fellow employees and their employer could be said to be potentially in the public interest.  The EAT also confirmed that disputes relating to terms and con- ditions of employment could be in the public interest.

What should employers do?

This decision seems to be inconsistent with the pur- pose behind the inclusion of the public interest test in June 2013, which was meant to prevent employees seeking whistleblowing protection in relation to matters regarding their own contract.

The Chesterton case is being appealed to the Court of Appeal but is not due to be heard until October 2016. In the meantime, employers should bear in mind that cases involving individual contractual disputes affecting only a small group of employees are likely to be held to be in the public interest. Therefore, employees mak- ing such a protected disclosure will be protected under whistleblowing legislation.

Case reference: Underwood v Wincanton Plc