As Halloween approaches and small children transform into ghosts and ghouls (the result of a half-term holiday and a trip to the costume aisle of a supermarket) one aspect of employment law also seems to be taking on a different form, or is at least part way to transforming back to its pre-2013 form.
The 2013 requirement for an employee to have a “reasonable belief” that their protected disclosure (whistle blowing) is “in the public interest” appears to have been watered down by the recent EAT case of Underwood v Wincanton Plc. This is important as employees have the benefit of a potential automatic unfair dismissal claim (unlimited compensation and no requirement for 2 years’ service) if they are dismissed for having made a protected disclosure, or a claim for subjection to a detriment if they are otherwise treated less favourably and subjected to a detriment as a result of having ‘whistle blown’ in a way which meets the protected disclosure tests. The risks for employers are therefore high.
The disclosure in Underwood was a complaint by Mr Underwood and 3 of his colleagues that overtime was not being shared out fairly, in breach of their employment contracts. The Tribunal had dismissed the claim on the grounds that the disclosure did not meet the “public interest” test. However, the EAT overturned that decision.
The EAT decided that, applying the case of Chesterton Global Ltd v Nurmohamed , it was simply necessary for the employee to reasonably believe that a section of the public was concerned with the issue, rather than it only being the concern of one individual. In this case, the 3 other colleagues were sufficient to amount to a section of the public.
Chesterton is being appealed to the Court of Appeal, so things may change again within the next year or so. However, for now, this case is a cautionary tale for employers. They need to:
- Be aware that complaints which appear to be personal and individual to employees may not be what they seem and may actually be protected disclosures.
- Be aware of the protection afforded to employees in relation to protected disclosures and the risk to employers (automatic unfair dismissal claims with unlimited compensation and which can be brought from day 1 of the employment relationship, and subjection to detriment claims).
- Have the ability to recognise a potential protected disclosure when one is made and to seek advice at the right time in order to minimise risk.
Handled badly (and notwithstanding the “public interest” test) contractual complaints made on behalf of more than one employee are still more than capable of going bump in the night and having very painful and costly consequences for employers.
Partner, Workwise Legal LLP