Whistleblowing – “public interest” can refer to complaints brought by only 4 employees

The EAT has considered further the requirement for a disclosure to be “made in the public interest” in the whistleblowing legislation regarding complaints brought by only 4 employees in a dispute with their employer (Underwood v Wincanton plc).

Background and Decision

Although this case notes the importance of the earlier EAT case of Chesterton Global Ltd v Nurmohamed, (please refer to our earlier Law Now here) where 100 senior managers were deemed to satisfy the public interest test, the widening of the application of this test to only 4 employees seems close to reverting to the notorious Parkins v Sodexho-type disclosures which were intended to be removed by the 2013 amendments to the whistleblowing regime and so reduce the number of whistleblowing claims by preventing claims from proceeding based solely upon individual employment disputes.

However, it must also be recognised that both Underwood and Chesterton contained elements that the EAT thought had a wider dimension which meant that the public interest could be invoked beyond merely the numbers of employees involved.

Mr Underwood, a road haulage employee, claimed that he had been dismissed for making protected disclosures – he and 3 others had collectively submitted a written complaint for victimisation and other forms of bullying for raising concerns that overtime was not being allocated fairly. The Employment Tribunal struck out Mr Underwood’s complaint for unfair dismissal and detriment for having made a protected disclosure as having no reasonable prospect of success.

There were a number of grounds of appeal, but a key ground was that the Employment Tribunal took too narrow a view of “public” and did so in the context of “public interest”. A qualifying disclosure under the whistleblowing legislation must be made in the reasonable belief that the disclosure is “in the public interest” in order to be protected against detriment or dismissal. In the Underwood case the EAT noted that the Chesterton EAT judgment had not been available at the time of the ET decision and should be considered.

The EAT in Chesterton stated “It is clear to us that [public interest] cannot mean something which is of interest to the entirety of the public since it is inevitable from the kind of disclosures which arise from time to time……that only a section of the public would be directly affected. It is our view that where a section of the public would be affected, rather than simply the individual concerned, this must be sufficient for a matter to be in the public interest”.

The EAT in Underwood upheld the appeal and stated that the interpretation of the public interest test was one of fact and degree and that “both the ET and EAT in the Chesterton case were satisfied that the “public” for the present purposes, could be constituted by a subset of the public, even if that subset comprised only persons employed by the same employer on the same terms.”

Commentary

Although Mr Underwood’s claim was allowed to proceed to a full hearing it is important to note that the EAT considered it significant that an aspect of the allegation was that drivers who readily reported safety concerns with their vehicles were those being penalised. Consequently it was possible to identify a wider section of the public, such that the nature of the allegation “might be thought to be a matter of some public interest to other road users”Chesterton. The analogy being drawn with the case that those members of the public who may seek to rely upon the accounts of the business would also have an interest in what would be a sufficiently material understatement of expenditure because of the underpayments of commission.

The Chesterton case is being appealed to the Court of Appeal but is not expected to be heard until October 2016. So until there is further clarification of the scope of the public interest test employers are likely to face further claims involving individual contractual disputes.

If those individual complaints can be said to engage or potentially affect, albeit indirectly, a wider cross-section of the public, the ChestertonUnderwood and cases suggest that the public interest test may be capable of being satisfied even if only (very) small numbers of employees are involved.

However, it is rather less obvious that the public interest would be engaged by a complaint by 4 back-office employees that overtime was being withheld on grounds of pure favouritism (and unaffected by discrimination) being displayed to some other employees. These matters will continue to be very fact sensitive.