Regular readers will remember that the whistleblowing provisions were amended in 2013 to introduce a "public interest" requirement. But there was still uncertainty about the extent to which complaints about an individual's own contractual arrangements would be able to form the basis for a whistleblowing claim. The latest case from the EAT confirms that the threshold for bringing such a claim remains quite low.
The claimant was a lorry driver. He and three colleagues raised a collective grievance complaining that overtime was being allocated unfairly, in breach of the employer's implied duty of trust and confidence. Although the grievance was not set out particularly clearly, the allegation seemed to be that employees who were scrupulous about vehicle safety checks were being disadvantaged. When the claimant was dismissed he claimed that his dismissal was because he had made a protected disclosure and automatically unfair.
The claim was initially struck out by the employment tribunal on the basis that the grievance was not a protected disclosure. It related to the contractual arrangements of a small group of employees and had not been made in the public interest.
The claimant successfully appealed to the EAT. The EAT referred to its earlier decision in Chesterton Global Ltd (t/a Chestertons) v Nurmohamed, which confirmed that a disclosure can be "in the public interest" even if it is about a matter that affects a section of the public rather than the public in its entirety.
In this case a complaint had been made by a number of drivers, not just the claimant himself. In addition, if the claimant was alleging that employees who were being too onerous in detecting defects in their vehicles were being penalised, this was capable of being a matter of public interest to other road users. If the claimant could show that he had a reasonable belief that the disclosure was made in the public interest his claim should be allowed to proceed.
This decision confirms the relatively low threshold for a "public interest" disclosure following the Nurmohamed decision. Tribunals should now be following the guidance in that case, at least pending an appeal to the Court of Appeal next year.