Underwood v Wincanton plc UKEAT/0163/15

Why care?

To have protection against detriment or dismissal under the whistleblowing legislation, a worker must have made a qualifying disclosure. This is a 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, is taking place or is likely to take place. It does not matter whether the disclosure is true as long as the worker believes it to be true.

Prior to 2013 there was no “public interest” test in the legislation and its introduction 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, despite the fact that this did not appear to have a “public interest” aspect. However the EAT held in the later case of Chesterton Global Ltd v Nurmohamed UKEAT/0335/14 that it was not necessary to show that a disclosure was of interest to the public as a whole. In that case a relatively small group (in that case 100 senior managers) may be sufficient. In Underwood v Wincanton the EAT heard an appeal from a decision of a Regional Employment Judge to strike out a claim, made before the EAT’s decision in Chesterton.

The case

Mr Underwood was an HGV driver with Wincanton plc who, together with three of his colleagues, submitted a written complaint, regarding their terms and conditions of employment. This included the way in which overtime was allocated among drivers. Mr Underwood was dismissed in June 2014. He subsequently issued a claim that his complaint amounted to a protected disclosure under the whistleblowing legislation and that his dismissal was automatically unfair. At the request of the tribunal he provided written submissions addressing why the complaint was in the public interest. He made reference to the fact that some of the drivers who were granted less overtime had raised concerns regarding the safety and road-worthiness of vehicles. However there was no express implication that there was a wider public interest in the case relating to road safety and this was not expressly stated or developed as an argument in the case. The employment Judge, who had not had the benefit of the EAT’s decision in Chesterton, struck out the claim, holding that as it was not in the “public interest” as it related to a dispute between Mr Underwood (and three of his co-workers) and Wincanton relating to the terms of employment existing between them and it was not something which the public were affected by, directly or indirectly.

Mr Underwood appealed to the EAT which allowed the appeal. The court considered whether there were any grounds for distinguishing Chesterton and concluded there were not. That case involved inaccurate accounts and had raised the question of whether there had been fraud which, the EAT noted, was self-evidently a matter of public interest. In the Underwood claim, although only implicitly, 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, which the EAT noted might also be thought to be a matter of public interest.

The EAT also considered that the tribunal had applied too narrow a definition of “public” when applying the “public interest” test because in the Chesterton case “public” could be a subset of the public, “even if that subset comprised persons employed by the same employer on the same terms”.  Finally the EAT noted that the tribunal’s ruling on “reasonable belief” could not be sustained. 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 so that an employee could reasonably hold the belief that a disclosure relating to such matters could be within the public interest. The EAT therefore held that the claim would be allowed to proceed for hearing by the tribunal.

What to take away

It appears that we have gone full circle. The employment judge in this case thought that that 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.” Despite the legislation being amended to rule out such disclosures, the decisions in Chesterton and now Underwood seem to permit the “public interest” test to include a subset of the general public, even when only comprised of employees of the same employer. Chesterton is being appealed to the Court of Appeal but is not due to be heard until 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.