February 5, 2016

Blowing the whistle at work – a change in the law

What is whistleblowing?

Put simply, employees whistleblow if they bring information about a wrongdoing to the attention of their employer. The disclosure should be about one or more of six specified types of wrongdoing, for example breaches of a legal obligation, regulatory breaches, criminal acts, or health and safety failings. Whistleblowing protection also extends to warnings that a wrongdoing is likely to occur in the future.

Until recently, employees were able to argue that they whistleblew if they alleged that their employer was breaching a term of their contract – a contract being a legal obligation. In 2013 the government closed what it saw as a loophole, and it is now a requirement that a protected disclosure is in the public interest.

What is "the public interest"?

Given the aim of the public interest amendment was to close this loophole, it may have been expected that any ‘private’ argument about employment terms of contract is now exempt from whistleblowing protection as not in “the public interest”. But, in two recent appeal cases this public interest requirement has been watered down.

The cases

Mr Underwood was employed as a HGV driver with Wincanton plc; he and three colleagues submitted a written complaint about their contractual entitlement to overtime and how overtime was allocated among drivers. He was dismissed shortly afterwards and he alleged he was dismissed because he had whistleblown.

The Employment Tribunal struck out the case saying it was a private dispute between employer and employee and Mr Underwood had therefore not whistleblown. On appeal, Mr Underwood argued that a dispute between an employer and a group of four employees relating to their terms and conditions of employment was capable of being a ‘public’ issue. The appeal court accepted that the employees had raised a collective complaint and that this was a matter capable of being in the public interest. The Court’s reasoning:
The ’public’ could be constituted by a subset of the public, “even if that subset comprised persons employed by the same employer on the same terms”.

This follows a similar decision in the case of Chesterton Global Ltd v Nurmohamed, concerning a disclosure about commission payments which affected 100 senior managers. Here, it was accepted that this was a subset of ‘public’ and therefore the disclosure gained whistleblowing protection.

What does this mean for your business?

It’s important to treat all concerns or complaints raised by employees seriously and deal with them under company processes. It’s also important to make sure that, where an employee has whistleblown, even if you believe the allegation has no merit, they are not subjected to any kind of detriment or dismissal as a consequence.

Now, with this change in the law, it’s even more important to deal with any employee-related contractual dispute which involves more than one employee as a ‘protected’ whistleblowing disclosure.

The Chesterton case is subject to an appeal which is likely to be decided by the end of the year. The law may change, yet again.

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