InsightsInsight - Employment & HR - POSTED: October 29 2015
New “public interest” test allows contractual complaints
Complaints about a contractual matter are in the public interest under the new whistleblowing provisions
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In Underwood v Wincanton Plc, the claimant claimed that he had made a protected disclosure by making a written complaint about the unfair distribution of overtime and that he was subjected to detrimental treatment by his employer as a result. His complaint was that overtime was not being distributed in a fair way between himself and three colleagues. The Employment Tribunal found that a complaint concerning a group of workers in relation to their contracts would not meet the public interest test.
On appeal, the Employment Appeal Tribunal said that the Tribunal at first instance had made their decision before the case of Chesterton Global Ltd v Nurmohamed had been heard. In that case, an employee made a disclosure about commission payments made to 100 senior managers being lower than they should be. The Appeal Tribunal found that so long as a section of the public, rather than one individual, was concerned then this was sufficient to meet the public interest test.
The Chesterton case concerned an Estate Agent in Mayfair. The disclosure was that they were overstating their costs for the London office which meant that bonuses were reduced for the employee and 100 senior managers. The Employment Tribunal and Employment Appeal Tribunal both found that the disclosure was made with the reasonable belief that it was in the public interest. The Appeal Tribunal said that an individual contract dispute would not normally satisfy the public test but a disclosure involving a small group of people may do; it was subject to the facts of that case.
The purpose of the Act is to encourage responsible and objective whistleblowing. The public interest test can be satisfied when the basis of the disclosure is wrong or there is no public interest in the disclosure, so long as the worker’s belief that disclosure was made in the interests of the public is reasonable.
The Chesterton case is due to be heard by the Court of Appeal in October 2016.
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