Underwood v Wincanton plc

The EAT has said that a dispute about terms and conditions of employment of a group of four employees was capable of being a protected disclosure under the whistleblowing legislation (under section 43B(1)(b) of the Employment Rights Act 1996 (ERA)); the dispute was a matter of public interest.

Facts

The claimant, Mr Underwood, was a HGV driver with Wincanton plc.  In November 2013, Mr Underwood and three of his colleagues collectively submitted a written complaint  about the way in which overtime was allocated among drivers. In June 2014, Mr Underwood was dismissed.

Subsequently, Mr Underwood submitted a claim. He contended, among other things, that: the November 2013 complaint amounted to a protected disclosure under section 43B(1)(b) ERA; that his dismissal related to this complaint; and, therefore, his dismissal automatically unfair.

To gain whistleblowing protection, Mr Underwood, amongst other qualifying conditions, needed to show the original complaint was made in the “public interest”.

Outcome

The EAT made reference to the recent case of Chesterton. This case gave guidance as to the correct approach under the newly amended section 43B(1)(b) ERA, including whether the matter was “of public interest”.

In the earlier Chesterton case, the allegation of inaccurate accounts had raised the question of whether there had been fraud, which the EAT noted was self-evidently a matter of public interest.  The EAT pointed out that there was a suggestion that Mr Underwood (and those making the disclosure) had been raising concerns of vehicle safety and road-worthiness. This concern raised wider issues of road safety. And these issues might also be thought to be a matter of public interest. The EAT concluded there were not any grounds for distinguishing Chesterton.

The EAT also considered that the original Tribunal in Underwood had applied too narrow a definition of “public” in the “public interest” test. Referring to Chesterton it noted that “public” could be constituted by a subset of the public, even if that subset included persons employed by the same employer on the same terms. The conclusion that disputes relating to terms and conditions of employment could not constitute matters in the public interest was inconsistent with Chesterton. It followed that an employee could reasonably hold the belief that a disclosure relating to such matters could be within the public interest.

The claim was therefore allowed to proceed for a full hearing by an Employment Tribunal (ET).

Points to note

Both Chesterton and Underwood show that a dispute which involves individual employment contracts can be in the “public interest” and, therefore, be a qualifying disclosure securing protection under the whistleblowing.  The fact that the dispute relates to terms and conditions of employment does not take dispute out of the “public interest” arena.

Chesterton is being appealed to the Court of Appeal and is due to be heard in October 2016.