UK: Whistleblowing - disclosure concerning alleged breach of four employees' contracts may satisfy "public interest" test

An employment tribunal was wrong to strike out a whistleblowing unfair dismissal claim on the basis that a disclosure concerning alleged breaches of the contracts of only four employees could not involve 'public interest'.

Whistleblowing law was amended in June 2013 to make protection conditional on the worker holding a reasonable belief that disclosure was in the “public interest”, a term not defined by the statute. It is the worker’s reasonable belief that matters, not whether the disclosure actually does involve an issue of public interest.

In Underwood v Wincanton, the alleged protected disclosure was a written complaint submitted by four HGV drivers that overtime had been allocated between drivers in a way which was in breach of their terms and conditions of employment. There was a suggestion that drivers allocated less overtime had raised concerns regarding the safety and road-worthiness of their vehicles.

The tribunal's approach, that a complaint about employees' breaches of contract could never involve 'public interest' such that the claim had no reasonable prospect of success, was held to be inconsistent with the EAT judgment in Chesterton. In that case, the EAT ruled that a disclosure relating to a contractual dispute affecting a group of 100 staff satisfied the test.

The EAT confirmed that, as the law now stands, a matter between employees and their employer is capable of being a matter within the public interest and therefore an employee can reasonably hold the belief that a disclosure relating to such matters is within the public interest. The case was therefore remitted to the tribunal to decide whether, on the facts, the claimant did have such a reasonable belief (and, if so, whether the dismissal was by reason of the disclosure).

Chesterton is due to be heard by the Court of Appeal in October 2016; in the meantime, tribunals will have to apply this broad view of 'public interest'. This highlights the importance of having good documentary evidence of the real reason for dismissals, in order to rebut suggestions that dismissal was retaliation for raising complaints (whether or not these amount to protected disclosures).