Two bites of the apple- limitation in professional negligence cases
In Underwood v Wincanton plc, the Employment Appeal Tribunal (“EAT”) has given guidance on the correct interpretation of “in the public interest” for the purposes of whistleblowing under the Public Interest Disclosure Act 1998 (“PIDA”). It concluded that a dispute between an employer and a group of just four employees, in relation to their conditions of employment, was “in the public interest” and so capable of being a protected disclosure.
The law protecting whistleblowers is well known, although it often raises complex issues in its practical application. In brief summary, PIDA gives protection against unfair dismissal and detriments suffered on the grounds that a worker has made a protected disclosure. In order to make a qualifying protected disclosure, a worker must disclose to their employer information which, in their reasonable belief, tends to show that one of a number of relevant breaches has, or is likely to, occur. There are six categories of relevant breaches, but the breach in question often falls within the broad category of a legal or regulatory obligation to which the employer is subject. The worker must also show that they reasonably believe that their disclosure is “in the public interest” and then pass the hurdle of causation between it and any detriment or dismissal they have suffered.
The concept of public interest in the context of whistleblowing is, in fact, a relatively new one, having only been introduced in 2013 and subject to little judicial consideration. Parliament’s aim in making this amendment seems to have been to remedy the broad ambit of whistleblowing protection which existed in light of Parkins v Sodexho Ltd. It was held in Sodexho that a dispute between employer and employee over the latter’s own employment contract could constitute a protected disclosure. As such, the wording of “in the public interest” was introduced into PIDA in an attempt to narrow its scope and, in particular, to prevent employees using breaches of their own employment contracts to bring claims under it.
The first EAT case to consider this amendment was Chesterton Global Ltd v Nurmohamed in which it was held that “public interest” did not necessarily mean the public as a whole, but could be limited to a section of it. In Chesterton the section of the public at issue only comprised of 100 employees, thus showing the EAT’s willingness to increase the breadth of the protection to once again include breaches of employees’ own contracts.
In the instant case of Underwood the EAT has continued along this path. Mr Underwood and three colleagues had complained to their employer about the terms of their employment and, in particular, the way in which their overtime was calculated. At first hearing the Tribunal, applying a narrow definition of “public interest” as meaning “relating to, or concerning the people as a whole” pursuant to the Collins English dictionary (albeit without the benefit of considering Chesterton), struck out the claim. However, on appeal, the EAT directed that the case should proceed to a full hearing as it held that, not only could a subset of the public pass the test, but even that a small subset of the employees of a single employer, who were complaining about their own terms, could do so. Furthermore, in the light of Chesterton, it was held an employee could reasonably believe that a disclosure of this kind is “in the public interest”.
It remains to be seen whether the courts would go as far as to interpret a single employee (as was the case in Sodexho) as being sufficient to constitute a subset of the public, but the decision in Underwood brings the law much closer to the position which existed before Parliament intervened to introduce the “public interest” requirement. This trajectory will certainly cause concern for employers, not least because the two year qualifying period for unfair dismissal claims does not apply to whistleblowing claims. The appeal to the decision in Chesterton will be heard by the Court of Appeal in October 2016, but in the meantime – employers beware – the EAT in Underwood made it clear that it should be followed in such cases.
If you need advice in relation to a whistleblowing issue, please contact a member of our employment team.
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