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In the Public Interest

In 1998 the New Labour Government introduced the Public Interest Disclosure Act (PIDA) to introduce a statutory protection the employees who blow the whistle on wrongdoing in the workplace. In the language of whistleblowing law when a worker blows the whistle this is a ‘protected disclosure’ and it is unlawful to place a worker at a detriment (including dismissal) for making that disclosure.

In my experience whistleblowing cases are among the most difficult for trade union reps to deal with, even more so than discrimination matters. Despite the title the initial Act did not specifically require that a protected disclosure be in the public interest. This was made clear in one of the most important cases on UK whistleblowing law, Parkins v Sodexho. This established that an employee who complains that an employer has acted unlawfully in breaching her contract of employment could rely on that complaint as a protected disclosure.

The Coalition government of 2010 onwards took a view that such a reliance was an ‘abuse’ of the whistleblowing legislation. Why it is an abuse to expect that an employer will not penalise an employee for complaining that they have been subject to unlawful conduct was never really answered, removing this option left most workers complaining of unilaterally imposed detrimental changes of contract with no meaningful remedy (constructive dismissal civil claims being inaccessible for most workers given the financial risk and costs involved).

Fast forward to 2013 and the government imposed a change in the law to require that an employee must have a reasonable belief that a disclosure is in the public interest in order to be protected; a complaint about a change in a person’s own contract would not consequently be protected. Since then there have been a number of cases where a change of contract has been imposed and an employee has continued to seek to argue that their complaint about this change was a protected disclosure because they believed that other people were also affected and, therefore, that the disclosure was in the public interest.

The most recent such case is Underwood v Wincanton PLC. In this case the claimant complained that his and other workers had been unfairly assigned work. He alleged that he had suffered detriment and dismissal because of that complaint. The EAT applied the recent finding in Chesterton that a complaint concerning or potentially concerning even “a few” workers may satisfy the public interest requirement. Therefore, the earlier tribunal’s decision that the claim should be struck out was overturned. 

Clearly, the new whistleblowing provisions do represent a reduction in the protection offered to workers but the decisions in Chesterton and Underwood do provide some consolation that where there is a complaint that the way an employer is treating a group of employees then there is the possibility that they may have some protections still under PIDA but it will be important to spell out the collective impact in complaints. Unfortunately, given the fact that Chesterton is currently under appeal to the Court of Appeal there is a risk that even this consolation will prove empty but, for the time being at least, a complaint involving a grievance of even a small group of workers may amount to a disclosure in the public interest.

 

Cases Referenced:

Chesterton Global Ltd (t/a Chestertons) v Nurmohamed [2015] IRLR 614

Parkins v Sodexho Ltd [2002] IRLR 109

Underwood v Wincanton Plc [2015] UKEAT 0163_15_2708

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