Employees complaining about breaches of their own contracts can be whistleblowers - Underwood v Wincanton Plc

For an employee to be protected by whistleblowing legislation, they must have disclosed information which they reasonably believe to be in the 'public interest'. Can a complaint about an employee's own contract be in the 'public interest'? According to the Employment Appeal Tribunal (EAT), it can. 

Facts

The Claimant (a lorry driver) and 3 colleagues made a formal complaint that overtime was not being distributed fairly, in breach of their employment contracts. They alleged that some of the drivers granted less overtime were those who had raised concerns about the safety and road-worthiness of vehicles. The Claimant was then dismissed and argued that, among other things, the complaint amounted to a protected disclosure. 

Decision

The Employment Tribunal struck out the claim, ruling that a complaint about contract terms concerning only a group of workers could not meet the 'public interest' test. 

The EAT overturned this decision, relying on the earlier case of Chesterton Global Ltd v Nurmohamed, which concerned an employee making a disclosure about contractual commission payments where 100 senior managers were affected. The EAT said that, provided a section of the public (rather than simply the individual) is affected, the public interest test is met. It was also significant that, although only implicit in the claim, there was a suggestion that those making the disclosure had been raising concerns of vehicle safety, which in turn raised wider issues of road safety.

Tips

Employers should be aware that employees may bring whistleblowing claims on the basis of allegations about their own contracts, particularly if there is a health and safety or other public interest dimension. If an employee can show they were dismissed because of a protected disclosure, they do not need the usual 2 years’ service to bring an unfair dismissal claim. The dismissal will be automatically unfair and there is no cap on compensation.

Zero Hour Contracts – government publishes guidance for employers & draft regulations on exclusivity terms

Guidance 

BIS has produced a guide for employers on zero-hour contracts. The guidance explains how zero-hour contracts should be used and includes information on employment rights, appropriate and inappropriate use, alternatives and best practice. Examples of appropriate use include use in new business start-ups, seasonal work and special events.

Draft Regulations 

The Government has also published draft 'Exclusivity Terms in Zero Hours Contracts (Redress) Regulations 2015'. The intention is to prevent employers including contractual provisions (known as 'exclusivity clauses') which prevent workers doing work under any other contract or arrangement. The regulations would give workers under zero hours contracts:

  • A right to claim unfair dismissal if the reason for the dismissal is failure to comply with an exclusivity clause; and
  • A right not to be subjected to any detriment for failing to comply with an exclusivity clause.

View guidance

Government to fast-track British Bill of Rights to replace Human Rights Act 1998

The Independent newspaper has reported that the government intends to proceed with its introduction of a British Bill of Rights to replace the Human Rights Act 1998. A 12-week consultation is expected to start in November or December this year with a view to the bill being fast-tracked into law by next summer.