Underwood v Wincanton plc UKEAT/0163/15
- Four employees raised a collective complaint regarding overtime
- EAT overturned an Employment Tribunal’s decision to strike out claim and held a contractual dispute could be in the public interest
- Decision appears to be inconsistent with the purpose behind the June 2013 changes to section 43B(1) of the ERA 1996
- Amendments were intended to prevent employees seeking whistleblowing protection in relation to matters regarding their own terms and conditions of employment
- The EAT in Chesterton Global Ltd v Nurmohamed UKEAT/0335/14 held that it is not necessary to show that a disclosure was of interest to the public as a whole, as it is inevitable that only a section of the public will be directly affected by any given disclosure. A relatively small group (in this case, 100 senior managers) may be sufficient to satisfy the public interest test
- Underwood takes things a step closer to Sodexho
- Chesterton is being appealed to Court of Appeal
- “in the public interest” added to s43B(1) by s17 of the Enterprise and Regulatory Reform Act 2013 (ERRA 2013) for disclosures made on or after 25 June 2013
- This was intended to reverse the effect of Parkins v Sodexho Ltd  IRLR 109, in which the EAT held that the definition of a qualifying disclosure was broad enough to cover a breach of the whistleblower’s own contract of employment, despite the fact that this did not appear to have a “public interest” aspect
Qualifying Disclosure i.e.
- any disclosure of information which, in the reasonable belief of the worker making it, is made
- in the public interest and tends to show that one or more of the six specified types of wrongdoing (including a failure to comply with any legal obligation) has taken place, is taking place or is likely to take place (section 43B(1), Employment Rights Act 1996 (ERA 1996))
Protected Disclosure i.e.
- There being a qualifying disclosure of information.
- The qualifying disclosure being made to an appropriate person