Whistleblowing: can the public interest test be satisfied more easily than first anticipated?

Posted on Nov 5, 2015

The recent case of Underwood v Wincanton saw the Employment Appeal Tribunal (EAT) give further consideration of how to interpret the words “in the public interest” for the purposes of protected disclosure.

In June 2013 the public interest test was introduced to prevent workers from relying on breaches of their own employment contracts as protected disclosures. However, in a recent case the EAT decided that the test can be satisfied where the worker’s complaint concerned not just him, but a wider group of employees, which the court decided counted as being in the public interest. One of the key points is that the worker must have reasonable belief that his or her disclosure has a public interest.

In Underwood v Wincanton, four lorry drivers complained about the allocation of overtime. They claimed that this was a protected disclosure which led to their dismissal. The claim was initially struck out on the basis that the complaint did not qualify as a protected disclosure.

The EAT however have allowed an appeal, following on from a previous case in which the judge had ruled that it was at least possible for a matter to be in the public interest even if it only concerned a contractual dispute between an employer and a group of employees.

Underwood has therefore been remitted back to the Tribunal on the basis that it could no longer be said that the grievance had no reasonable prospect of being found to be a protected disclosure.

What does this mean for employers?

The case is yet to be decided by the original Tribunal, but with the possibility of it succeeding it is advised that employers keep an eye out for any protected disclosures, asking themselves the question “does this affect more than just the employee bringing the complaint?”