Posted by Gemma Ospedale, Partner
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“Public interest” test in whistleblowing already being eroded
In Underwood v Wincanton Plc the EAT has considered the circumstances in which a public interest disclosure satisfies the public interest test introduced in 2013 by section 43B of the Employment Rights Act. The purpose of introducing the public interest test was to move away from incidences of employees or workers successfully claiming that breaches of their own employment contract, which was something specific to them, was a breach of a legal obligation and thus passing the protected disclosure test. After the EAT’s recent decision in Chesterton Global Limited and another v Nurmohamed (which is itself being appealed to the Court of Appeal) it appears this test is being ever more swiftly dumbed down.
The Claimant worked as a driver for the Respondent and was dismissed in June 2014. He lodged claims that he had been automatically unfairly dismissed and treated detrimentally for having made a protected disclosure. He relied on a letter, written 7 months earlier by him and 3 other colleagues, complaining of an unfair allocation of overtime. The letter also appeared to contain a suggestion that drivers who were perceived as difficult because of being particularly assiduous with regard to vehicle safety and roadworthiness, were being denied overtime. This was defended on the basis that the disclosure was not protected because it was not in the public interest, and the most it could amount to was a collective grievance about a contractual matter.
The Employment Judge struck out the claim on the grounds that it had no reasonable prospects of success, principally because he considered that it would not satisfy the public interest test. He considered that the matters raised were not something which the public would be affected by, or indeed interested in, and he did not consider the Claimant could have reasonably believed that it would be.
On appeal to the EAT, the appeal was allowed. Since the Employment Judge’s decision, the EAT had given Judgment in the Chesterton case which is (currently) authority for the proposition that the public interest requirement can be met by comprising a relatively small group of people who may be employees of the same employer, who have the same interest in the matter as that raised by the Claimant. This case also emphasised that the importance was not whether the matter was actually in the public interest but whether the person making the disclosure had a reasonable belief that it would be. The EAT considered that the Employment Judge’s approach in this case was not consistent with the subsequent guidance given in the Chesterton case, which had raised allegations of fraud; however this letter suggested (but only tentatively) that employees were punished for being too stringent when carrying out vehicle checks (which presumably could amount to a health and safety issue). The EAT considered that, in the light of the Chesterton decision, the Employment Judge’s decision could not stand and he had too narrow a view of the term “public interest” in not recognising that this can refer to a subset of the general public: even one which is solely comprised of employees of the same employer. Consequently the Employment Judge’s decision was overturned and the case will now proceed to Tribunal.
This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.
For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.
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