Whistleblowing – breach of contract and the public interest

A complaint by a worker about the terms of his own contract of employment can be in the “public interest” and amount to a protected disclosure under the new whistleblowing provisions, the EAT has held.

The law protects whistleblowers whose employer dismisses them or subjects them to detriment on the ground that they have made a protected disclosure. Claims are not subject to the usual 2-year qualifying period of employment for unfair dismissal claims and can be costly as there is no statutory cap on compensation.

In June 2013, a public interest test was introduced to prevent workers from relying on breaches of their own employment contracts as protected disclosures. However, two recent cases in the Employment Appeals Tribunal have held that this test is satisfied if the worker’s complaint concerns a group of employees (rather than just the individual) and the worker reasonably believes the disclosure to be in the public interest.

In Chesterton Global Ltd v Nurmohamed, the complaint was about commission payments affecting 100 senior managers; in Underwood v Wincanton Plc, four lorry drivers complained about allocation of overtime.

Employers are advised to watch out for protected disclosures and, if not already in place:

• Implement a whistleblowing policy;
• Publicise the policy internally and train management in its principles and operation; and
• Investigate disclosures promptly and keep the whistleblower informed as to progress.

If you would like to discuss how to reduce the business risk of mishandling whistleblowing and protected disclosures, please contact Colin Smith at cos@blasermills.co.uk or on 01494 478625