Whistleblowing claims make a comeback

01 Feb 2017

The concept of whistleblowing was introduced into UK employment law in 1999 by the Public Interest Disclosure Act. A worker can bring a claim if they are dismissed because they have made a “protected disclosure”, more commonly known as “blowing the whistle”.

The significance of a whistleblowing claim is that damages are uncapped, unlike an ordinary unfair dismissal claim that is capped at either one year’s actual salary or £79,000 for those earning in excess of that sum. A whistleblowing claim can also be brought by someone with less than two years’ continuous service making it a very popular claim, particularly for higher earners.

The definition of a protected disclosure has changed over the years. When it was introduced in 1999 it was defined as:

  • a disclosure of information
  • about some breach by the employer, usually a breach of a legal obligation
  • made in good faith

In 2002, case law established that a breach of the worker’s own service contract was a breach of a legal obligation for the purposes of a whistleblowing claim1. So an employee who had raised a complaint about, for example, their bonus, could argue that this amounted to a protected disclosure. It is unlikely that the legislation was intended to cover this situation but this tactic was widely and effectively used in litigation and exit negotiations.

In 2013, the definition of a protected disclosure was tweaked to try to put a stop to this. The requirement for “good faith” was removed, and replaced by a requirement that the whistle-blower should reasonably believe that their disclosure was “in the public interest”. This limited the scope of whistleblowing claims considerably, as complaints about matters that were personal to the worker would not usually meet this test.

However, recent case law has been chipping away at the “public interest” requirement and employers and workers should both be aware that the possibility of bringing whistleblowing claims relating to personal complaints is back on the table.

For example, the Employment Appeals Tribunal (EAT) decided that an estate agent’s complaint about his commission was in the public interest2. This was because around 100 other workers in the company were also affected by the issue. The EAT held that these 100 workers constituted a section of the public, and therefore the public interest test was met. A subsequent case reached a similar outcome where there were only four affected workers3.

So there is apparently no minimum number of affected workers required to meet the public interest test. As long as at least one person other than the claimant is affected, then a whistleblowing claim could potentially succeed. This significantly opens the door to whistleblowing claims to make a comeback and be used to a much greater extent in exit negotiations.

 


[1] Parkins v. Sodexho (2002) UKEAT

[2] Chesterton Global Ltd (t/a Chestertons) and another v Nurmohamed UKEAT/0335/14

[3] Underwood v Wincanton plc UKEAT/0163/15

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