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26th October 2015

How Public is Public?

Background

Under so-called ‘whistleblowing’ legislation workers who have made a ‘qualifying disclosure’ are protected against being dismissed or subjected to a detriment because they have done so. If it is found that an employee was dismissed because they blew the whistle on their employer then that dismissal will be automatically unfair.

There will be no statutory cap on the compensation which can be awarded in respect of that unfair dismissal and the employee will not have had to have been employed for two years or more before bringing the claim.

Key to whether the whistleblowing protection has been engaged in a particular situation is whether an employee has made a qualifying disclosure as defined in the Employment Rights Act 1996. This is a disclosure of information which, in the reasonable opinion of the person who makes it, is made in the public interest and which tends to show that one or more of six specified types of wrong doing has taken place, is taking place or is likely to take place.

That a disclosure must be ‘in the public interest’ was an additional requirement introduced on 25th June 2013. It was a reaction to the case of Parkins v Sodexho in which the Employment Appeal Tribunal held that a complaint that an employer was in breach of a whistleblower’s own contract of employment was sufficient to amount to a qualifying disclosure. This was thought to fundamentally change the nature of the protection offered by the legislation, which was designed to offer protection in matters of public rather than merely personal interest.

How public does it have to be?

In Chesterton Global Limited v Nurmohamed the Employment Appeal Tribunal considered what effect the introduction of the requirement that a disclosure must be ‘in the public interest’ had. They held that it was not necessary to show that the disclosure was of interest to the public as a whole, as it is inevitable that only a section of the public will be directly affected by any given disclosure. In that case the interests of a relatively small group of 100 senior managers was found to be sufficient to satisfy the requirement.

This principle was further considered by the Employment Appeal Tribunal in Underwood v Wincanton plc which arose out of a written complaint by Mr Underwood on behalf of himself and three colleagues about their terms and conditions of employment, in particular the allocation of overtime. Following his dismissal in June 2014 Mr Underwood alleged, amongst other things, that the complaint he had raised in November 2013 was a protected disclosure, he was dismissed as a result of having made that disclosure and therefore his dismissal was automatically unfair.

The Employment Tribunal considered, at a preliminary hearing, whether the public interest test had been satisfied. In a decision made before judgment was published in the Chesterton case, the Employment Judge concluded that a disclosure concerning four employees was not capable of satisfying the public interest requirement of a protected disclosure. The whistleblowing claim was therefore struck out at a preliminary stage.

Mr Underwood appealed against that strike out order to the Employment Appeal Tribunal and that judgment has just been published. The Appeal Tribunal felt bound to follow the decision in Chesterton, namely that a relatively limited number of work colleagues could potentially constitute ‘the public’ for the purposes of a qualifying disclosure. On that basis the case has been remitted back to the Employment Tribunal to be considered on its merits.

Conclusion

Although at first reading the Underwood case has the appearance of taking the law back to the position before June 2013, where it was possible for an employee to be protected by the whistleblowing legislation following a disclosure which related purely to their own employment.

However, whilst it is apparent that the hurdle for establishing that a disclosure is in the public interest does appear to be set low, it is clear that the disclosure will have to involve more than just the complainant in order to invoke the relevant protection.

The best advice to employers however will continue to be that when contemplating dismissal or some other action in relation to an employee who has raised a grievance or some other complaint, to have in place a clear chain of evidence supporting the reasons for that action which is capable of showing that the decisions were taken for reasons entirely unconnected to any alleged protected disclosure.

For more information please visit our Employment services page or click here to email Clare Waller.

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