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Employment Law

Legal guidance - compliance - software

23 OCT 2015

Whistleblowing - contractual matters can still fall within the 'public interest' test

Whistleblowing - contractual matters can still fall within the 'public interest' test
Charlotte Williams
Solicitor, Veale Wasbrough Vizards

The EAT has followed the first previous case on the 'public interest' test in the context of whistleblowing, finding that a collective grievance brought by a small number of employees about a contractual matter could also meet the public interest requirement.

The law on whistleblowing was amended in 2013 in order to prevent a worker being afforded whistleblower status as a result of raising a purely personal complaint and a public interest test was introduced. In April 2015 we reported on the judgment in Chesteron Global Ltd v Nurmohamed, where it was decided that even a small group of employees of the same employer can have a mutual concern which is in the public interest. In Underwood v Wincanton plc, the EAT has followed this decision.


Underwood (U) worked as a driver for Wincanton plc (W plc). Following his dismissal in June 2014, U brought claims for automatically unfair dismissal and detriment for making a protected disclosure under the Employment Rights Act 1996 (ie a whistleblowing claim). He claimed that he was afforded whistleblower protection on the basis of a complaint made that he and three other drivers (who also signed the letter of complaint) were not receiving available overtime, potentially because they were particularly scrupulous about vehicle safety and roadworthiness (the alleged qualifying disclosure).

The claim was struck out by the Employment Tribunal as having no reasonable prospect of success as the alleged qualifying disclosure was not in the public interest, being specific to the drivers' terms and conditions of employment.


The EAT allowed the appeal against strike out. The EAT confirmed that the words 'in the public interest' prevent a worker from relying on a breach of their own contract of employment where there are no wider public interest implications. However, this did not prevent a relatively small group of employees from satisfying the public interest requirement on the facts. The EAT also reiterated that the relevant question is whether the claimant believed their disclosure was in the public interest, not whether it in fact was (although the belief itself must be reasonable).

Best practice

In Chesterton around 100 senior managers were held to be a sufficient section of the public. In Underwood the EAT found that only four workers could potentially meet the 'public interest' requirement. The Chesterton case is due to be heard at the Court of Appeal  in October 2016 and should bring some clarity to this area. Until then, it is likely that further whistleblowing cases will continue to follow a wider approach as to what is, or could be, 'in the public interest'.

This decision reminds employers that care should be taken before an individual who raised a concern, whether contractual or not, is dismissed or otherwise subjected to detriment. Employers should carefully consider whether the concern could be a 'protected disclosure' and take advice where necessary. Relevant considerations are whether the concern could potentially be 'in the public interest' and whether the worker making the disclosure reasonably believes it to be so.
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