The EAT has held that a collective complaint by four employees regarding their terms and conditions of employment amounted to a protected disclosure for the purposes of unfair dismissal protections under whistleblowing legislation (Underwood v Wincanton plc UKEAT/0163/15).
Under the whistleblowing provisions of the Employment Rights Act 1996 (ERA) workers seeking protection from dismissal or detriment must make a disclosure of information which:
- tends to show commission, or likely commission, of one of six prescribed forms of wrongdoing (including breaches of contractual and statutory obligations); and
- is made in the public interest, in the reasonable belief of that worker.
If they do not satisfy these requirements, workers will not qualify for whistleblower protection (section 43B(1), Employment Rights Act 1996 (ERA 1996)).
A worker bringing a whistleblowing claim does not have to prove that the facts or allegations disclosed are true, or that they satisfy the legal definitions of the wrongdoing listed in the legislation. The worker must genuinely believe that the relevant failure has occurred or is likely to occur and must convince the tribunal that their belief is objectively reasonable. As long as those conditions are satisfied, the success of the worker's claim will not be affected by the discovery that his or her belief was mistaken or that the wrongdoing does not fall into one of the categories prescribed by the legislation (Babula v WalthamForest College  EWCA Civ 174).
Public interest test
Section 17 of the Enterprise and Regulatory Reform Act 2013 added into the ERA a new requirement for disclosures made on or after 25 June 2013 to be in the "public interest". This provision was designed to overturn the decision in Parkins v Sodexho Ltd  IRLR 109. In that case, the EAT had held that a complaint about a breach of the whistleblower's own contract of employment could amount to a protected disclosure, despite the fact that this complaint only furthered his own interests. The Government felt that this was not in the intended spirit of the original whistleblowing legislation; workers were not supposed to be able to rely opportunistically on breaches of their own employment contracts when there were no wider public interest implications.
However, the legislation has left it to case law to define exactly what is meant by "public interest". In Chesterton Global Ltd v Nurmohamed UKEAT/0335/14, the EAT held that, for the purposes of the new public interest test, it is not necessary to show that a disclosure is of interest to the public as a whole. This is because it is very unlikely that any one disclosure will affect the whole public; it will nearly always only affect a certain section of it. In Chesterton, a group of 100 employees all being affected by one disclosure was sufficient to satisfy the test. This was despite the fact that the disclosure was primarily motivated by the whistleblower's own interests, albeit that he was able to show that he had a reasonable degree of concern about the other affected employees as well. You can read our full report on the Chesterton decision here.
Underwood v Wincanton plc concerned an appeal of the decision to strike out a claim which was issued before Chesterton.
The Claimant worked for Wincanton plc. In November 2013, he and three of his colleagues made a group complaint regarding the terms and conditions of their employment, including the way in which overtime was allocated across a group of employees. Seven months later, the Claimant was dismissed.
The Claimant issued a claim for automatically unfair dismissal. He contended that he had been dismissed in response to the complaint submitted in November, which he argued amounted to a protected disclosure under section 43B(1)(b) ERA 1996. The claim was listed for a preliminary hearing, at which the Claimant was ordered to specify how his disclosures satisfied the public interest test under section 43B(1)(b). In the absence of such an explanation, the claim would be struck out.
The Claimant argued that the disclosures concerned a number of workers at his site, each of which had their own separate contractual arrangements. Accordingly the disclosures were in the public interest. However, the Employment Judge struck out the claim on the basis that the complaints did not relate to, or concern, the public as a whole. Accordingly, the Judge concluded that the Claimant could not have held a reasonable belief that the matter was in the public interest.
The Claimant appealed to the EAT.
The EAT considered whether there were any grounds for distinguishing Chesterton and concluded there were not. It was also not satisfied, despite attempts at persuasion from the Respondent, that Chesterton was wrongly decided.
The EAT went on to consider the various grounds of appeal. First, it considered whether the Tribunal had applied too narrow a definition of “public” when applying the “public interest” test. Chesterton had confirmed that “public” could be constituted by a subset of the public “even if that subset comprised persons employed by the same employer on the same terms”. This finding went directly against the Employment Judge's conclusion that the dispute between the Claimant and his fellow employees and Wincanton could never be said to be in the public interest. This was an overly-narrow interpretation of the term "public interest" for the purposes of the statutory test.
The EAT also disagreed with the Judge's finding that the Claimant could not have reasonably believed his disclosure to be in the public interest. That finding had been based upon the assumption that a disclosure which affected only the whistleblower and other employees with the same terms and conditions could not possibly be in the public interest. However, in light of Chesterton, that assumption was incorrect. Chesterton confirmed that such a disclosure could be in the public interest. Therefore, there was no obstacle to finding that the Claimant reasonably believed in such a public interest.
The strike out decision was overturned and the claim was allowed to proceed.
The decisions in Chesterton and Underwood appear to bring the law back to the position decided by Parkins v Sodexho. Once again, a disclosure relating to the terms of employment between claimant and respondent is capable of satisfying the public interest test. However, this principle presumably would not apply to a complaint about a contractual term which uniquely affected the maker of that complaint. There would need to be other employees who were similarly affected, but this is by no means a difficult obstacle to overcome.
The Court of Appeal will consider the employer's appeal in the Chesterton case in October 2016. Until then, it is likely that the door remains open for individual contractual disputes to overcome the public interest hurdle.