It seems that a complaint about a specific term of an employment contract, provided it affects more than just one individual, can be in the ‘public interest’ for the purposes of the newly amended whistle-blowing provisions under section 43B(1) of the Employment Rights Act 1996.
This was the decision of the Employment Appeal Tribunal (EAT) in Underwood v Wincanton Plc following guidance as to the meaning of ‘public interest’ under the new provisions.
One of Underwood’s claims was that he suffered detriment from his employer, Wincanton Plc, following a written complaint made by him and three others concerning the unfair distribution of overtime. It was claimed that the complaint was a protected disclosure made in the public interest.
The first-tier tribunal struck out the claim on the basis that a complaint, concerning only a group of workers with an identical grievance about a particular term of their employment contracts, could not meet the ‘public interest’ test under the 1996 Act (as amended).
The EAT overturned the judgment, noting that the first-tier tribunal had passed its judgment prior to another decision of the EAT in Chesterton Global Ltd v Normohamed – another case involving the definition of ‘public interest’, this time in respect of some 100 senior managers and commission payments under their employment contracts.
In Chesterton the EAT held that provided a section of the public, rather than an individual, was concerned, a disclosure may be in the public interest under the amended section 43B(1). That case is the subject of an appeal to the Court of Appeal, to be heard in October 2016.
For now, however, employers should be mindful of the wider definition of ‘public interest’ when dealing with collective grievances in the workplace. If those raising the grievance are subjected to detriment – be that a dismissal or victimisation in some form – employers may find themselves facing an additional whistle-blowing claim.
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