Blowing the whistle on employee contracts

In Underwood v Wincanton plc, the Employment Appeal Tribunal has held that an employee may rely on the whistleblowing legislation in relation to a complaint about the application of a term in his contract of employment where there is a public interest dimension to the complaint.

Background

The “whistleblowing” legislation was introduced in 1998 – as the Public Interest Disclosure Act – in the aftermath of a number of high profile financial scandals and major accidents of the previous decade.  These included the collapse of BCCI and the MS Herald of Free Enterprise ferry disaster among others.  It was thought that a climate of fear in the work-place had inhibited employees raising issues, and had they done so the scandal or disaster may have been prevented or mitigated.  In introducing the legislation, Richard Shepherd said in the House of Commons, that it was a “public interest measure” and not “merely an employee rights measure.” 

Nonetheless, the legislation was incorporated as an amendment to the Employment Rights Act 1996 and it was drafted so widely that it included an employee making a disclosure about his or her own contract. In the light of a number of cases where, it seemed, employees were using the legislation as a means of protecting their own contractual rights and not matters of genuine public interest, the legislation was amended in 2013 so that a disclosure had to be made “in the public interest.”  This, of course, left open the question of what is meant by “the public interest”.  The Employment Appeal Tribunal (EAT) has given some recent guidance on this issue in the case of Underwood v Wincanton plc. 

Facts

The Claimant, Mr Underwood, was an HGV driver working for Wincanton Plc. Along with three of his colleagues, the Claimant made a formal complaint to Wincanton about the terms of their employment contracts.  He alleged that drivers who raised concerns about the safety and road-worthiness of vehicles were granted less overtime and were subsequently paid less. After raising the complaint, the Claimant was dismissed.

The Claimant issued a claim stating that his dismissal was automatically unfair and that he had suffered a detriment as a result of the protected disclosure he had made. However, the claim was struck out by the Employment Judge on the basis that a contractual dispute between private sector employees and their employer was not a matter of public interest and that the claim had no reasonable prospect of success. The Claimant appealed to the EAT.

Decision

Allowing the appeal, the EAT held that the Employment Judge had taken too narrow a view on interpreting the meaning of “public interest”: because the complaint related to concerns about vehicle safety and road-worthiness, it could be considered a matter of public interest. Following the decision in Chesterton Global Ltd v Nurmohamed, the term “public” could mean a subset of the public, including a (relatively small) group of people employed by the same employer. 

The claim has, therefore, been allowed to proceed to a hearing to determine whether Mr Underwood was dismissed because he had made a protected disclosure. 

Comment

It is perhaps understandable that the EAT thought the issues of health and safety meant this case was within the scope of problem the legislation was intended to address.  Nonetheless, this did require an interpretation of the word “public” to mean a relatively small number of employees.

Employers should be aware that, in the light of this case, employees may bring claims on the basis of allegations about their own contracts if there is a health and safety or other public interest dimension to the claim.  If an employee can show that they were dismissed because of a protected disclosure, they do not need to have the usual two years’ service to bring a claim of unfair dismissal, the dismissal will be automatically unfair and there is no cap on the compensation that can be awarded.

Employers may also need to consider the drafting of their whistleblowing policies.

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