Test of public interest
Labour & European Law Review Weekly Issue 446 18 November 2015
Following an amendment in 2013 to the 1998 Public Interest Disclosure Act, a worker making a qualifying disclosure now has to have a reasonable belief that it is “in the public interest”. In Underwood v Wincanton plc, the Employment Appeal Tribunal (EAT) held that the “public” could be constituted by a subset of the public, even if that subset was made up solely of people employed by the same employer on the same terms.
After being dismissed in June 2014, Mr Underwood lodged a tribunal claim for automatic unfair dismissal on the basis that he had made protected disclosures.
These related to a written complaint which he and three colleagues had submitted in November 2013 to his employer concerning victimisation, bullying and a concern that overtime was not being allocated fairly, among other things. The precise wording and meaning of the letter were not always clear, but it seemed to suggest that overtime was being withheld from drivers who were deemed too scrupulous by the company in carrying out checks on their vehicles and detecting defects.
The company argued that as there was no contractual right to overtime, the letter was being dealt with as a collective grievance and could not therefore be raised under the whistle blowing policy.
Section 43B(1)(b) of the Employment Rights Act 1996 (ERA) states that a qualifying disclosure means any disclosure of information which, in the reasonable belief of the worker, is made “in the public interest” and tends to show that “a person has failed, is failing or is likely to fail to comply with any legal obligation to which he [sic] is subject”
At a preliminary hearing, the employment tribunal judge struck out the claim on the basis that a complaint concerning a group of workers with a grievance about their contracts of employment could not meet the “public interest” test under the ERA as it was not something which affected the public, directly or indirectly.
However, the EAT allowed the appeal following the decision in Chesterton Global Ltd and anor v Nurmohamed (weekly LELR 421) which had been given a few months after the tribunal had reached its conclusions. This made clear that as the purpose of the protected disclosure provisions was to protect employees from unfair treatment for raising genuine concerns about wrongdoing in the workplace, a breach of a legal obligation owed by an employer to an employee under their own contract might constitute a protected disclosure. On that basis, it concluded that a contract dispute affecting 100 senior managers constituted a “sufficient group of the public” to satisfy the test of being “in the public interest”.
In line with that decision, the EAT in this case held that the question for consideration was not whether the disclosure per se was in the public interest but whether the worker making the disclosure had a reasonable belief that it was made in the public interest. It was clear from Chesterton that the “public” could be constituted by a subset of the public, even if that subset was made up solely of people employed by the same employer on the same terms.
The appeal was allowed and the claim remitted to the tribunal for determination.
The case of Chesterton Global Limited and anor v Nurmohamed is currently on appeal to the Court of Appeal and is listed for hearing in October 2016.