Employment contract matters can pass 'Public Interest' test for whistleblowing

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The EAT has ruled that a complaint about overtime allocation within a section of an employer's workforce could count as whistleblowing for the purposes of the Employment Rights Act 1996.

Background

The claimant in Underwood v Wincanton plc was an HGV driver who was dismissed by Wincanton Plc after about 18 months employment. 

He claimed that he was dismissed for making a protected disclosure, i.e. for whistleblowing.  

Employees who are dismissed for whistleblowing can claim unfair dismissal without the 2 years' continuous service ordinarily required to bring an unfair dismissal claim. Also, if an employee is dismissed for whistleblowing, the dismissal is automatically unfair and there is no cap on the compensation which can be awarded.

Whistleblowing is defined in the Employment Rights Act 1996. To qualify as a whistleblower, the employee must have disclosed one or more of a number of types of malpractice which are set out in the Act. These include that a person is failing to comply with a legal obligation. Caselaw has established that an employer's breach of an employment contract can count as a breach of a legal obligation in this context. This means that, in theory, employees who are dismissed for raising or complaining about, or otherwise disclosing a breach of their own employment contract, can claim whistleblower status. However,  since June 2013, employees have needed to show that they reasonably believed that they were acting in the public interest when disclosing alleged malpractice. This amendment was introduced to prevent an employee from claiming whistleblower status when complaining about a breach of their own employment contract, which affected only them personally and had no wider public interest element. 

In this case, the claimant and three other employees made a written complaint to the employer that overtime was not being allocated fairly, so that some drivers were suffering reduced income. According to the EAT, there seemed to be a suggestion that overtime was being withheld specifically from drivers who were seen to be awkward by reason of being scrupulous about the safety and roadworthiness of their vehicles. The four signatories did not use the employer's whistleblowing policy to raise their complaint. According to the employer, it investigated the complaint and took measures to ensure that the allocation of hours was subject to further procedures and scrutiny.

The claimant alleged that his subsequent dismissal was because he had raised this written complaint. The employer argued that the complaint he had raised could not count as whistleblowing. The tribunal agreed, and struck out the claim. The claimant appealed to the EAT.

EAT decision

The EAT ruled that the complaint about overtime allocation could count as whistleblowing if the claimant reasonably believed that it was in the public interest.  

The EAT referred to the recent case of Chesterton v Nurmohammed in which it was ruled that a complaint about the alleged miscalculation of commission payments due to 100 or so senior mangers could be in the public interest. The "public" for whistleblowing purposes could be just a subset of the public, or even just a cohort of employees.  The EAT therefore concluded that, in the light of the Chesterton case, the complaint in this case could also potentially count as whistleblowing.  The EAT therefore overturned the tribunal's decision to strike out the claim and returned the case to the tribunal to decide if this particular claimant did reasonably believe that he was acting in the public interest. The tribunal will also need to decide, in due course, if the complaint was the real reason for the claimant's dismissal.

Comment

This case follows the earlier decision in Chesterton in adopting an employee-friendly interpretation of the notion of "public interest". Despite the changes to the law in June 2013, there seems to be ongoing scope for employees to claim that complaining about a breach of their own employment contract counts as whistleblowing. Employers should be careful to consider such grievance or complaint might constitute whistleblowing and protect the employee as a whistleblower. However, just because an employee is a whistleblower, does not make them immune from dismissal. It just means that they cannot be dismissed for whistleblowing.

The Chestertons case is due to be heard by the Court of Appeal next year, when we hope for more guidance on the definition of "public" for whistleblowing purposes. 

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