Beware – Return of the Whistleblower
Whistleblowing refers to a practice whereby employees bring a protected disclosure or grievance to their employer’s or a regulator’s attention which highlights an issue of mismanagement, corruption, illegality or some other wrong doing. Because of the controversial content of the grievance or protected disclosure the practice of whistleblowing often leads to the whistleblower being subjected to a detriment or being dismissed. The most famous case of whistle blowing in recent times is Edward Snowden on the NSA in America.
In terms of employment law, a claim brought in relation to whistleblowing is not subject to the usual two years’ service qualifying period. Neither is there a statutory cap on compensation. These measures are in place to protect employees from being dismissed or subjected to a detriment as a result of their disclosure.
In 2013 a ‘public interest’ test was introduced by the Courts to prevent workers from using a breach of their own employment contract as a protected disclosure and hence side stepping the 2 year qualification period in the process. Before 2013 this was a widely used technique for employees who had been dismissed before the two year mark trying to obtain some damages as a result of their dismissal. The ‘public interest’ test has significantly reduced the number of such claims brought over the past two years. However two major contract claims have since found their way around the ‘public interest’ test.
The cases in question are Underwood v Wincanton PLC [2015] (Underwood) and Chesterton Global LTD v Nurmohamed [2015] (Chesterton). The case of Underwood involved four lorry drivers who complained about the way overtime was being distributed unfairly and that this was a breach of their contracts. Their complaints ultimately led to their dismissal. One of the claimants who had worked there for just under two years was unable to bring a claim in respect of an unfair dismissal, so instead chose to present a whistleblowing claim to the Tribunal. Initially it failed on the grounds that the claim was not in the public’s interest.
The Chesterton case is interesting as it is the first whistleblowing claim that managed to pass the ‘public interest’ test involving a contractual dispute. The case involved Mr Nurmohamed who made a protected disclosure that the behaviour of Chesterton had affected the pay of around 100 senior managers. The Tribunal ruled that Mr Nurmohamed was in fact acting in the public’s interest and not just his own and therefore he passed the ‘public interest’ test.
Following the decision in Chesterton, Underwood proceeded to the Employment Appeal Tribunal (EAT). On 27 August 2015 the EAT overturned the Tribunal’s decision, due to the fact that there were four drivers in total whom the behaviour affected, not just the one resembling the reasoning in Chesterton. However the EAT did not make it abundantly clear whether the notion that three affected colleagues amounted to satisfying the general public interest test.
This new EAT case law now gives claimants the ability to bring a whistle blowing claim that involves a breach of contract that can pass the ‘public interest’ test. However the claimant must be able to show that there is more than one individual that has been affected by the breach of contract and the whistleblower genuinely believes his/her disclosure is in the public’s best interest and not just their own. For the time being we at Blacks suggest employers should sit tight and see whether this development opens the doors to numerous claims that will try and use whistleblowing in an attempt to get around the two year’s service for unfair dismissal rule.
Partner
Employment Law
DWard@LawBlacks.com
0113 227 9262
View profile
David Ward
