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Whistleblowing: Unfair Dismissal and Detriment

03 February 2016

There has recently been a second Employment Appeals Tribunal decision in relation to the meaning of the words “in the public interest” that form part of the new statutory test to be applied in determining whether there has been a protected disclosure by a whistleblower.

Since 25 June 2013 an employee or worker who seeks protection from detriment or unfair dismissal as a result of whistleblowing has been required to show that he made a “qualifying disclosure” i.e. a disclosure of information which he reasonably believed was made in the public interest and tended to show, amongst other things, that his employer has failed to comply with a legal obligation.

Previously case law appeared to provide that a qualifying disclosure would cover any breach of an employee’s own contract of employment even if that did not have a public interest dimension or implication. The Coalition Government narrowed the definition of whistleblowing to require the worker to reasonably believe that his disclosure was in the public interest even if the information he disclosed was essentially of or about a breach of his contract of employment.

An early case in 2014 (Chesterton Global –v- Nurmohamed) held that it was sufficient for a whistleblower employee to show that a relatively small group of the public, in that case a group of 100 fellow employees satisfied the public interest test. Now the EAT has decided that Mr Underwood, an HGV driver who was dismissed, and who along with 3 other employees had complained to his employer Wincanton PLC about the way in which overtime was allocated, could allege unfair dismissal because he had previously raised concerns about the road worthiness and safety of vehicles.

This case (Underwood –v- Wincanton PLC) is interesting because it indicates that a disclosure of what is essentially a breach of an employment contract, unfair allocation of overtime, is capable of being in the public interest and therefore protected by the whistleblowing legislation.

The earlier Chesterton Global decision is in fact being appealed to the Court of Appeal and the case is not expected to be decided until October 2016.