In May this year we reported the case involving the estate agents, Chestertons. It was about whistleblowing; in particular, the requirement that a worker must reasonably believe that their disclosure is in the public interest in order to benefit from whistleblowing protection. The case decided that something that was of interest to 100 senior managers could be in the public interest.
Underwood v Wincanton builds on that. Mr Underwood was dismissed after he and colleagues made disclosures to their employer about the unfair distribution of overtime to drivers. He claimed that he had suffered detriment and had been automatically unfairly dismissed because he had made protected disclosures. But did the disclosures have the necessary ‘public interest’ element? The tribunal held not and struck out the claim at a preliminary stage. The complaint was about a group of workers who had an identical grievance about an aspect of their employment contracts; this wasn’t in the public interest, the tribunal said.
By the time the case arrived at the Employment Appeal Tribunal (EAT), the Chestertons case had been decided. It was clear that ‘public’ could be a subgroup, even if made up only of people employed by the same employer on the same terms. So the EAT reached a similar conclusion in the Underwood case: it is at least possible for a matter to be in the public interest even if it’s only about a contractual dispute between a group of employees and their employer.
The upshot is that the claim will now proceed and it will be for the tribunal to decide the outcome. The EAT made reference to the fact that the Chestertons case is being appealed, and that until that hearing takes place in October 2016, its conclusions should be followed. So, for now at least, workers who disclose information in the right way about a breach of their (and their colleagues’) employment contracts could have whistleblowing protection.
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Underwood v Wincanton