In this case, the EAT considered whether a complaint about an employee's cramped working conditions could meet the public interest requirement of a protected disclosure.
Ms Morgan was employed by a charity, the Royal Mencap Society. She claimed that she had been constructively and automatically unfairly dismissed and subjected to detriments because she had made disclosures which were protected by the whistleblowing legislation and because she had made complaints about health and safety. The protected disclosures were two complaints about cramped working conditions and the effect that these working conditions had on her health. She claimed that making these complaints was in the public interest (and therefore protected by whistleblowing legislation) because Mencap is a charity, financially supported by the public, and the public would therefore be interested to know how it treated its employees. She also argued that the issues she raised potentially presented a threat to the health and safety of others.
Mencap successfully applied to have Ms Morgan's whistleblowing claim struck out before her evidence was heard on the basis that Ms Morgan's disclosures were not a matter of public interest and it could not be Ms Morgan's reasonable belief that they were. Ms Morgan appealed. The EAT disagreed with the strike out decision because it considered it possible that, if heard, the evidence might show that Ms Morgan's complaints met the public interest test. The evidence will therefore be heard by another employment tribunal.
What does this mean for employers?
For many years there was no "public interest" test in whistleblowing legislation, although it was understood that the intention behind the legislation (reflected by its name – the "Public Interest Disclosure Act") was to protect individuals who made complaints in the public interest. In 2002, the EAT held that a complaint made by an individual about their terms and conditions could be protected by the whistleblowing legislation. Feeling that this went beyond what was intended by the whistleblowing legislation, in 2013 the government added the words "in the public interest" into the legislation, so that only disclosures which were made in the public interest would be protected. This change reduced the scope for bringing this type of claim. However, last year the EAT decided, in the Chesterton case that a disclosure need not be made in the interest of the public as a whole, but can be made in the interests of a smaller section of the public – for example, a group of employees. This opened the door to employees claiming that a complaint about terms and conditions could be protected, so long as other employees might be affected. The door was propped open when Chesterton was followed by Underwood (which we discussed in our November alert ). The decision in Ms Morgan's case potentially pushes the door open wider still, showing that (following the reasoning in Chesterton) there may be unexpected ways in which the wider public interest issues could be said to be engaged in relation to a complaint about a individual's own circumstances. It will be useful to obtain clarity on this issue from the Court of Appeal when it hears the Chesterton case later this year and we will also await the outcome from the full hearing of Ms Morgan's claim.
Until then, employers should be wary of taking action against an employee who has raised a complaint about their own circumstances, and consider what arguments the employee could use that the complaint might be in the public interest.