Underwood v Wincanton Plc

A contractual workplace complaint may satisfy the public-interest requirement for a qualifying disclosure. The question is fact-sensitive. A relatively small group of employees, including employees of the same employer with common contractual interests, may constitute a sufficient section of the public.

Under section 43B(1) of the Employment Rights Act 1996, the material inquiry is whether the worker reasonably believed that the disclosure was made in the public interest. A tribunal should not strike out a claim merely because the alleged wrongdoing concerns contractual terms, where that belief may reasonably be established at trial.

The claimant, a lorry driver, alleged that he and three colleagues made a protected disclosure by complaining in writing about the unfair allocation of overtime at their depot. He alleged consequent detriments and automatic unfair dismissal.

A Regional Employment Judge struck out that aspect of the claim as having no reasonable prospect of success. The Judge held that a dispute concerning the employees' contractual terms could not be in the public interest. The claimant appealed. The central issue was whether the complaint could arguably meet the public-interest and reasonable-belief requirements in section 43B(1) of the Employment Rights Act 1996.

1. Appeal allowed. The strike-out order was set aside and the protected-disclosure claims based on the November 2013 complaint were remitted for determination with the claimant's remaining claims.

2. The Regional Employment Judge had construed “public interest” too narrowly. The subsequent EAT decision in Chesterton Global Ltd (t/a Chestertons) v Nurmohamed [2015] IRLR 614 established that the relevant public may be a relatively small group, including employees of one employer who share the same interest. Whether the requirement is met depends on the facts and degree of the case.

3. It followed that a complaint about contractual terms and conditions could not be excluded from protection merely because it arose in the employment relationship. The complaint arguably concerned a cohort of drivers, and its allegations could potentially have implications beyond the claimant's individual overtime allocation.

4. The statutory question is whether the worker had a reasonable belief that the disclosure was made in the public interest. The Regional Employment Judge's erroneous legal premise meant that the EAT could not be confident that this question had been approached correctly.

5. On a strike-out under Rule 37(1)(a), the claim had to have no reasonable prospect of success. In light of Chesterton, that conclusion could not safely be reached without trial, even though the claim might ultimately fail on the evidence.

6. The EAT also ordered the respondent to pay £1,000 towards the hearing fee. A fee paid for an appellant by a representative or another third party could still support the EAT's costs jurisdiction under Rule 34A(2A) of the Employment Appeal Tribunal Rules 1993. Enforcement was deferred until after disposal of the substantive tribunal claims.

• Employment Appeal Tribunal: Allowed the claimant's appeal, set aside the strike-out, and remitted the protected-disclosure claims for determination.
• Employment Tribunal: The Regional Employment Judge, on reconsideration, struck out the automatic-unfair-dismissal and detriment complaints founded on the November 2013 letter as having no reasonable prospect of success.