Underwood v Wincanton

The Employment Appeal Tribunal (“EAT”) recently considered whether a complaint about contractual matters could be in the "public interest" under the new whistleblowing provisions.

In Underwood v Wincanton plc one of the Claimant's claims was that he had made a protected disclosure and been subjected to a detriment by his employer. The disclosure was a written complaint made by him and three other lorry drivers that overtime was not being distributed fairly in breach of their contracts of employment.

The Employment Tribunal struck out the claim finding that a complaint, concerning only a group of workers about terms of their contracts, could not meet the public interest test.

Overturning the Employment Tribunal's decision the EAT recognised that the Employment Tribunal's judgment had been given before any real guidance as to the meaning of "public interest" and before its decision in Chesterton Global Ltd v Nurmohamed had been delivered. That case concerned an employee making a disclosure about contractual matters (commission payments) where 100 senior managers were affected. The EAT found that provided a section of the public, rather than simply the individual, was concerned, this was sufficient to meet the test.

In Underwood v Wincanton plc the EAT has held 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 protected disclosure, entitling them to seek protection against unfair dismissal under whistleblowing legislation. This case indicates some of the difficulties for employers in relation to whistleblowing and the potential scope of the protection offered to employees. This is a complex area of law and where an employer is facing complaints that could attract the protection of whistleblowing legislation we strongly recommend that legal advice is taken.