We can now report on a further case that supports that decision. In the case of Underwood v Wincanton plc, the Employment Appeals Tribunal ("EAT") held that an employee can still be protected under the whistleblowing legislation if they raise a contractual matter specific to their terms of employment, regardless of whether or not it is in the public interest.
The whistleblowing provisions under the Employment Rights Act limit protection to employees who make a disclosure in the reasonable belief that the disclosure is in the public interest.
In this most recent case, Mr Underwood worked as a driver for Wincanton plc until his dismissal in June 2014. He issued claims for automatic unfair dismissal and whistleblowing. In terms of his whistleblowing claim, the disclosure he relied upon was a letter to his employer on behalf of himself and three colleagues about unfair allocation of overtime (this is similar to the earlier case of Chesterton v Nurmohamed where Mr Nurmohamed raised concerns about a commission structure that affected him and 100 other managers).
Mr Underwood's letter suggested that overtime was being withheld from drivers who were seen by the employer to be awkward in their approach to vehicle safety and roadworthiness. Mr Underwood believed this to be a disclosure that attracted the protection of the whistleblowing legislation. The employer's defence was that this was not in the public interest – it was simply a grievance about an internal contractual matter.
The Employment Tribunal ("ET") agreed with the employer and dismissed Mr Underwood's claim on the basis that it had no reasonable prospect of success. The Judge ruled that the disclosure was not something that the public would be affected by and therefore it was not reasonable for Mr Underwood to believe that it was in the public interest and consequently Mr Underwood was not protected by the whistleblowing legislation.
Mr Underwood appealed the EAT. The Judge referred to the decision in the earlier case of Chesterton v Nurmohamed which emphasised that what is important, is not whether the disclosure is actually in the public interest, but whether the employee making the disclosure has a reasonable belief that it is in the public interest.
The EAT ruled that the ET in Mr Underwood's case did not take a consistent approach with the ruling in the Chesterton case. It was held that the ET took too narrow a view of the term "public" failing to recognise that it can refer to a sub-set of the general public, even one composed solely of employees of a particular employer. It was further held that the ET erred in finding that disputes about terms and conditions of employment could not constitute matters of public interest.
For all those reasons, the EAT held that the claim would therefore be allowed to proceed in the ET. We will keep you updated as to progress in this case.
In accordance with our earlier report in April 2015, this is a further important decision on whistleblower protection and further supports the view that the courts seem determined to keep the bar low in terms of the hurdles workers have to get over in order to be protected by the whistleblower legislation.