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Whistleblowing - breach of contract and the public interest

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 Thanks to Dionne Dury of Fox Whitfield solicitors for preparing this case summary

Thanks to Laurie Anstis of Boyes Turner, who is standing in for Daniel Barnett until the end of the month.

Can a complaint about contractual matters be in the "public interest" under the new whistleblowing provisions?

Yes, held the EAT 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 new "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. 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.

The Chesterton case is the subject of an appeal to the Court of Appeal (listed for October 2016)