What do we already know?
In July 2013, the whistle-blower legislation was changed to require a worker making a disclosure to have a reasonable belief that the disclosure was made in the ‘public interest’. The change was primarily aimed at removing whistle-blower protection from workers who made disclosures about alleged breaches of their own personal contract of employment.
However, the definition of ‘public interest’ was not clarified by the legislation. Therefore Tribunal decisions are central to providing such clarity. We updated you on the case of Chestertons Global Ltd v Nurmohamed in our April 2015 Newsletter Case update (3): Whistleblowing – what is in the public interest?. This clarified that even when an employee’s primary motivation in making a disclosure involves a dispute about his or her own contract of employment, that disclosure may still be in the public interest so long as other employees are affected.
The recent EAT decision of Underwood v Wincanton Plc available here has provided further clarity on when a whistle-blowing disclosure is in the ‘public interest’. This case involved a lorry driver who, along with three colleagues, made a formal complaint that overtime was not being distributed fairly, in breach of their employment contracts and that this was linked to raising concerns about their vehicles’ safety and road-worthiness (which would have a knock-on effect on other road-users).
In summary, the EAT followed the above case of Chesterton Global Ltd v Nurmohamed, to say that, provided a section of the public (rather than simply the individual) is affected, the public interest test is met.
Employers should be aware that employees may still bring whistle-blowing claims on the basis of allegations about their own contracts, despite the 2013 changes in whistle-blowing legislation, particularly if there is a health and safety or other public interest dimension.