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Employment Law

Legal guidance - compliance - software

01 APR 2016

Whistleblowing - can a complaint about cramped working conditions be in the public interest?

Helen Hughes
Solicitor, Veale Wasbrough Vizards

In the case of Morgan v Royal Mencap Society, the Employment Appeal Tribunal (EAT) has considered whether a complaint about an employee's cramped working conditions can be in the public interest and therefore amount to a protected disclosure for whistleblowing purposes.

The background

A whistleblower will now only be protected against detriment or dismissal if they have a reasonable belief that their disclosure is in the public interest. We have previously reported the case of Chesterton Global Ltd v Nurmohamed, where the EAT found that it was not necessary to show that the disclosure was in the interest of the public as a whole. In Chesterton, a low threshold was set as it was found that a relatively small group (100 senior managers) was sufficient to satisfy the public interest requirement. This decision has been appealed to the Court of Appeal (CA) and is due to be heard in October.

The facts of Morgan

Ms Morgan made a complaint about cramped working conditions causing a risk to her health and safety. She made a claim to the Employment Tribunal (ET) that she had been automatically unfairly dismissed and subjected to detriments because of this alleged disclosure.

The ET struck out Ms Morgan's claims at a preliminary hearing, finding that she had no prospect of successfully showing that she reasonably believed that her complaint about her own cramped working conditions was in the public interest. Ms Morgan appealed to the EAT.

The EAT's decision

The EAT upheld the appeal. It found that it was reasonably arguable that Ms Morgan's complaint may have met the public interest requirement even if she was the main person affected. It was found that the issue could only be determined after considering the evidence in full at a final hearing.

The EAT also commented that a high threshold is required for a tribunal to strike out a whistleblowing claim as having no reasonable prospects of success at a preliminary hearing.

Best practice

This case shows that a complaint about a worker's own contract of employment and working conditions may potentially meet the public interest requirement if the worker is found to have reasonable believed that a sufficient section of the public was directly affected by the disclosure.

The ultimate outcome of this case nay, however, be affected by the upcoming decision of the CA in Chesterton.
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