Whistleblowing - back to the future

In the same month and year to which the heroes of 'Back to the Future 2' travelled – October 2015 – the Employment Appeal Tribunal has sent whistleblowing law 'back to future' by winding the clock back on the new public interest whistleblowing test.  Sarah Maddock reports on this development, and also looks at a renewed focus on whistleblowing in the charity sector.

The background

Workers who 'blow the whistle', or raise a 'protected disclosure', benefit from greatly increased protection and compensation if they bring a successful claim for detriment or dismissal.

In order to qualify for those additional benefits, the disclosure made by the worker must comply with the statutory definition of a protected disclosure.  It must be a disclosure of information which

• in the reasonable belief of the worker making it,
• is made in the public interest; and
• identifies one or more of six specified types of wrongdoing.

Confusingly, although whistleblowing legislation derives from the Public Interest Disclosure Act 1998 (our emphasis), originally there was no requirement for the disclosure in question to have a public interest element.  This was viewed as something of a loophole for claimants, who often sought to make use of whistleblowing protections in relation to allegations or complaints about their own contracts of employment.

Therefore, in 2013, the 'public interest' element in the definition of a protected disclosure was added. However, the government did not go further and specifically exclude breaches of workers' own contracts of employment.

This left the door open for a wide construction of the phrase 'in the public interest'.  The Employment Appeal Tribunal (EAT) made use of that opportunity in a 2014 case called Chesterton Global Limited v Nurmohamed - it held that complaints about accountancy practices, raised by a relatively small group of employees (about 100), met the 'public interest' test.

This month, in Underwood v Wincanton, the EAT applied the Chesterton case and continued to widen the definition of a protected disclosure.

The facts

Mr Underwood was a lorry driver. He and three colleagues submitted a written complaint regarding their contractual terms, including, in particular, the way in which overtime was allocated among drivers.  There was a suggestion that overtime was being withheld from drivers who were perceived as being overly zealous about the safety and road worthiness of vehicles (although this was far from clear).

Mr Underwood argued that the allegations made in the complaint from him and his colleagues amounted to a public interest 'protected disclosure'.  However, an Employment Judge disagreed and struck out his claim. 

Mr Underwood appealed.

The decision

The EAT allowed the appeal, noting that the Employment Judge had not had the benefit of the decision in Chesterton (see above) when making his decision. The EAT said that the complaint raised by Mr Underwood and his colleagues was capable of being a protected disclosure because

• although unclear, there was a suggestion the disclosure raised wider concerns of vehicle safety and road-worthiness, which might be thought of as a matter of 'public interest'; and
• following the line of reasoning in Chesterton, it was clear that the definition of 'public' was a wide definition and could include a smaller subset of the public, even if that comprised a small group of people employed by the same employer.

Furthermore, and importantly, the EAT noted that

• what is important is not whether the disclosure itself is in the public interest, but whether the worker making the disclosure reasonably believes that the disclosure is in the public interest; and
• disputes relating to individual terms and conditions of employment could constitute matters in the 'public interest' and it was reasonable for an employee to hold the belief that such matters could be within the public interest.

What does this mean for me?

This case confirms that a wide approach will be taken to the requirement that a worker needs a reasonable belief that their complaint or allegation is in the 'public interest'. It is possible for concerns regarding a worker's own contractual arrangements to qualify as a protected disclosure. 

However, the developing case law in this area suggests that there still needs to be some element of collective concern being raised (for example, in Chesterton, inaccurate accountancy practices which could mislead the public and, in Underwood, safety issues which could affect other road users).

Please note that Chesterton is being appealed to the Court of Appeal but is not due to be heard until October 2016 - and there is likely to be a further delay before the decision is published. In the meantime, your policies and practices will need to reflect the fact that it is now likely that issues involving individual contractual disputes will be categorised as being 'in the public interest'. 

In a separate development on the same topic, the Charity Commission has published new guidance this month on whistleblowing for charity employees. The guidance highlights that the Charity Commission is one of the prescribed bodies to which concerns can be raised and includes a dedicated email address for charity workers to raise concerns. The guidance sets out the key features of whistleblowing law and outlines how the Charity Commission will handle concerns. 

Charities should, therefore, be aware that the Charity Commission appears to be renewing its focus on its role as a complaints handler (rather than a 'friend' of charities) and it may be that charities will see an increase in whistleblowing complaints as a result.  If you are working in the third sector, be aware that workers may make use of this additional channel for highlighting issues. In order to prepare for this eventuality, you should ensure that you have an up to date whistleblowing policy and procedure in place, complemented by an effective raising concerns culture.

If you require any assistance with your whistleblowing arrangements, whether as a result of the developments described above or more generally, please contact me, or your usual Bevan Brittan contact. We can work with you on revising or drafting raising concerns policies, support with proactively implementing and embedding that policy throughout your organisation, guiding you through investigation processes and providing training workshops for your management teams.