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Whistleblowing update – what is in the public interest?

The EAT has given further guidance on the “public interest” test that employee’s must satisfy in order to gain whistleblowing protection. This test broadly requires reports of wrongdoing to relate to matters in the public interest, rather than merely someone’s private interests. However, recent case law suggests the meaning of “public interest” might not be as narrow as first thought.

In the case of Underwood v Wincanton Plc four colleagues submitted a written complaint that overtime was not being fairly distributed which they considered in breach of their contracts. The Tribunal dismissed the claim on the basis that complaints about the terms of a group of workers’ contracts were not in the “public interest”.

On appeal the EAT held that a complaint about contractual matters affecting four employees could be considered in the “public interest”. This decision follows an earlier judgment by the EAT in Chesterton Global Limited that held a complaint about commission payments affecting 100 managers could also be considered in the “public interest”.

Both cases indicate that provided a section of the public was affected, this may be sufficient to satisfy the test. Employers should therefore carefully consider whether any collective complaints or grievances could amount to a protected disclosure before taking any further action which could give rise to a costly claim.

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