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Case law: Disclosure regarding employment terms can be in the 'public interest' in unfair dismissal claims

Employers faced with allegations of unfair dismissal on grounds the employee has made a protected disclosure should be aware the disclosure may still be in the public interest, even if it only involves a small number of employees, following a recent legal ruling.

Legal Alert

This update was published in Legal Alert - December 2015

Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.

Workers are protected against detriment or dismissal under UK whistleblowing laws if they make a 'protected disclosure'. However, the protections only apply if the worker reasonably believes the disclosure was in the public interest.

Historically, disclosures relating to the worker's own terms of employment have not been treated as in the public interest. However, in a recent case an employee, together with co-workers, filed a grievance about how overtime was allocated. The employees were drivers and claimed that those drivers who were particularly scrupulous about vehicle health and safety checks were less likely to be offered overtime. The grievance was resolved but the employee was later dismissed. He claimed the dismissal was because he had made a protected disclosure.

The employer argued that the employee's complaint did not have the necessary element of public interest to amount to a protected disclosure. It related only to the workers involved, all of whom had the same grievance about particular terms in their contracts. It applied for the claim to be struck out as having no reasonable prospect of success.

The Employment Appeal Tribunal (EAT) refused to strike out the claim. It ruled that it was theoretically possible for a contractual dispute between employees and an employer to be a matter of public interest – a small number of employees could amount to the 'public' for this purpose. It also referred to the (albeit remote) interest of members of the public in being sure vehicles on the road were safe. It therefore ruled that the claim could go ahead.

The main claim may still fail – this was a preliminary application to strike out the claim as having no prospect of success. However, employers should take this ruling into account for the time being if employees claim they are being disciplined for making protected disclosures.

Operative date

  • Now

Recommendations

  • Employers faced with allegations of unfair dismissal on grounds the employee concerned has made a protected disclosure should be aware the disclosure may still be in the public interest - even if it only involves a small number of employees

Case ref: Underwood v Wincanton Plc UKEAT/0163/15/RN

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