Not whistling in the wind. Workers' own contract disputes can attract whistleblower protection
Employment E-alert November 2015 Contact the author:
The Issue Workers reporting wrongdoing at work must reasonably believe the information is "in the public interest" to get employment law whistleblowing protection against resulting detriment or dismissal. This public interest requirement was intended to remove whistleblower protection from workers who disclosed information covering a breach of their own contract. With no definition of “in the public interest”, there has now been another appeal level decision confirming this public interest test is not as broad as it might appear.
What does “in the public interest” mean in whistleblowing?
Carolyn Brown Partner, Head of Employment T: +44 (0)20 3755 5390 E: carolyn.brown@howardkennedy.com
The latest decision concerned Mr Underwood who was an HGV driver with Wincanton plc and who, with three colleagues, made a written complaint about their terms and conditions of employment, including about the way overtime was allocated. When Mr Underwood was dismissed seven months later, he claimed he had been automatically unfairly dismissed because of his overtime complaint which he termed a whistleblowing report. In that case, the EAT directed that for whistleblowing claims:
A contractual dispute between a group of employees or workers and their employer can be in the public interest
An employee or worker could reasonably believe that a disclosure about this to the employer was in the public interest.
Consequences and Practical Guidance This second EAT decision appears to take whistleblowing protection back close to its pre-public interest test days when workers who disclosed information about alleged breaches of their own contracts of employment had whistleblowing protection. The EAT’s first public interest test decision is being appealed but that appeal is not due to be heard until October 2016. Until then, the low bar for establishing that whistleblowing is in the public interest remains firmly set and so even cases involving disclosure of individual contractual disputes will potentially enjoy whistleblowing protection. Businesses should, to minimise claims risk, continue to:
Assess the risk of potential whistleblowing claims by workers who raise with their employer concerns about apparent individual contractual disputes which the employee or worker may reasonably believe have a wider impact
Review or update existing whistleblowing policies to cover the public interest test
Ensure that managers are trained:
In recognising potential whistleblowing reports
In operating their whistleblowing policies
To respond appropriately to reports of wrongdoing made by workers in their business.
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