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Take care with 'day one' whistleblowing rights


Overturning an earlier Employment Tribunal decision, the Employment Appeal Tribunal has recently ruled in Underwood v Wincanton plc (2015) EAT, that a contractual dispute between four employees and the employer over contract terms could amount to a public interest warranting protection under whistleblowing laws. We look at the implications in this Employment Express.                                                           

Background

The Public Interest Disclosure Act 1998 (PIDA) came into force on 2 July 1999. It came about as a result of tragedies such as the Zeebrugge Ferry disaster where workers failed to raise concerns due to be feeling at risk of harm from their employers if they did so.  PIDA is supposed to give protection against, dismissal, victimisation and other detriment if workers who report certain types of malpractice to their employers. 

Staff are able to seek legal redress if they are improperly exited under PIDA, but they may only do so in certain limited circumstances. They first have to make a "qualifying disclosure". There are six types of protected qualifying disclosures. One type of disclosure is a "failure to comply with a legal requirement".

The employee must have a reasonable belief that the information they disclose tends to show malpractice and, (since an amendment to the legislation on 25th June 2013), they also have to prove that they reasonably believe what they are telling the employer is something which is "in the public interest". There are other conditions to satisfy, but needless to say there has been case law around what will be "in the public interest".

A worker doesn’t have to show that what they are complaining about is, in fact true. They do not have to be a super sleuth. But they do need to prove that they reasonably believed that the content of their complaint is "in the public interest".

The public interest test

Earlier cases decided the definitions of a qualifying disclosure could be wide enough to give protection if the concern was something to do with their own personal contract of employment being breached. This led to some former employees citing whistleblowing legislation in their claim forms as a way to try to circumvent the requirement to have two years continuous service to bring an ordinary unfair dismissal claim and also a way to lift the statutory cap off the amount of compensation which they might potentially be awarded.

The Government felt that whistleblowing legislation wasn’t being used for the purpose for which it had been originally intended and brought in a new test by adding section 43B(1) into the Employment Rights Act 1996.

In addition to meeting the other requirements of the legislation, staff subsequently needed to show that the thing they were complaining about was actually "in the public interest". Since implementation of this new test, reported cases also stated that breach by an employer of an individual’s employment contract, could not be "in the public interest". The combined effect of this was to make it much harder for employees to meet the requirements of whistleblowing legislation, circumvent the two year continuous service rule to bring ordinary unfair dismissal claims and, at the same time, lift the statutory cap limiting compensation levels.

Facts

In November 2014, four HGV drivers were in dispute with their employer, Wincanton plc about the way in which overtime was distributed amongst the drivers under their contracts of employment. One of the drivers, Mr Underwood, was dismissed. He claimed that his complaint to Wincanton  was a protected disclosure, that he had been dismissed because of it and that his dismissal was automatically unfair as a result. 

Mr Underwood’s complaint referenced his belief that the reason why overtime was being operated so as to grant him and his three colleagues less overtime than others, was because they had raised some concerns over, amongst other things, vehicle safety.  The employment tribunal judge said that Mr Underwood’s claim didn’t satisfy the public interest test because a dispute about operation of the employment contract between the employer and an individual employee couldn’t be said to be in the public interest. Mr Underwood’s claim was struck out. He appealed.

The decision to strike out was made before a decision in another reported case called Chesterton Global Ltd v Nurmohamed (2014) EAT in which 100 managers complaints about their employment contracts had been decided. In that case, 100 managers was considered to be a section of the public of sufficient size to bring their complaint within the new public interest test.

Outcome

In Mr Underwood’s case the EAT said that "public", as defined in the new section 43B(1), could be a subsection of the public. It didn’t have to mean the "public" at large although it could do and, overturning previous case law, that as such it also wasn’t correct that contractual arguments between an individual employer and employee could never be "in the public interest".

Learning point

HR Professionals need to be alive to the fact that contractual disputes between an employer and individual staff can still potentially be complaints which satisfy the new "public interest" test.  Because whistleblowing protection is a "day one" employment right, it has, as a result of the Underwood case, become easier again for employees to bring claims for automatically unfair dismissal on this basis and in turn circumvent the two year requirement for bringing clams for ordinary unfair dismissal and lift the statutory cap. Employers must take special care again that they are not dismissing in breach of a day one right where they think that the only bone of contention between them and a staff member is something relating to the operation of their employment contract.

If you would like to discuss any issues raised in this article, we have specific employment law expertise in advising in this area.  For further advice, please contact Joan Pettingill

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