Whistleblowing case

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 [2002] 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.

  1. any disclosure of information which, in the reasonable belief of the worker making it, is made
  2. 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.

  1. There being a qualifying disclosure of information.
  2. The qualifying disclosure being made to an appropriate person