Whistleblowing and the public interest requirement

In Underwood -v- Wincanton 2015, the EAT has followed its earlier decision in Chesterton Global Ltd -v- Nurmohamed 2015 to hold that there can be a public interest in a dispute between an employer and a group of employees (four in this case), which relates to their terms and conditions of employment.

In order to be protected from a 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 a specified type of wrongdoing has taken place, or is likely to take place. In Underwood, the EAT held that a dispute relating to a contract of employment can in fact be in the public interest as “public” can include a subset of the public, “even if that subset comprised persons employed by the same employer on the same terms”. Therefore, a dispute between Mr Underwood and his fellow employees involved could be in the public interest.

In the earlier case of Parkins -v- Sodexho 2001 it was held that a dispute relating to the terms of employment could come within the protection of the whistleblowing regime. After that case, Parliament legislated to introduce the public interest requirement as it was felt that Parkins had expanded the reach of the legislation beyond what was originally intended. The fact that the law has now come full circle appears somewhat contrary to legislative intent. Chesterton is due to be heard by the Court of Appeal in October 2016, but until then Underwood demonstrates that it remains good law.