Case law: One employee's conditions or terms of employment can be a matter of 'public interest' for purposes of whistleblowing claim
Employers should be aware that failure to address the complaint of one employee about their own working conditions or terms of employment can still be a matter of public interest, enabling the employee to bring a whistleblowing claim.
This update was published in Legal Alert - May 2016
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An employee of a charity complained several times about her cramped working conditions, saying they breached health and safety laws. Her complaints were verbal, by email and in a Safeguarding Reporting Form. She resigned when she felt she was not being listened to, and claimed unfair dismissal. One of her arguments was that her 'dismissal' was automatically unfair because it was prompted by her complaints which were 'protected disclosures' under whistleblowing laws.
Workers are protected against dismissal (or any other 'detriment') under UK whistleblowing laws if the dismissal is for making a 'protected disclosure'. However, the protections only apply if the worker reasonably believes the disclosure was in the public interest.
The employer applied for her claim to be struck out, arguing that disclosure by just one employee of her working conditions could not be a matter of public interest. For a claim to be struck out the employer must show it has no reasonable prospect of success.
Historically, disclosures relating to a worker's own terms of employment have not been treated as in the public interest. However, recent legal decisions have indicated they sometimes can. In this case the employee argued that:
- it was in the public interest for the public to know about the employees' working conditions and the charity's approach to health and safety matters;
- the conditions she objected to were also of concern to other employees.
The Employment Appeal Tribunal ruled that it was reasonably arguable that complaints by just one employee about, for instance, their own health and safety at work, could be in the public interest if they were in the wider interests of employees generally. Therefore, while the employee in this case might ultimately lose at a full trial, the claim should not be struck out at this stage. It remitted the case back to the Employment Tribunal for a substantive hearing.
- Employers should be aware that failure to address one employee's complaints about their own working conditions or terms of employment can be a matter of public interest, enabling the employee to bring a whistleblowing claim.
Case ref: Morgan v Royal Mencap Society UKEAT/0272/15/LA
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