In 2013, the Employment Rights Act was amended to reduce the scope for employees complaining about issues relating to their own contracts of employment to claim that this afforded them all the protections of a whistleblower.
Post the 2013 amendment, it has been necessary for an individual to demonstrate that he/she had a reasonable belief that the disclosure of any wrongdoing was in the public interest, which you would think would be a relatively tough gig in most contractual complaints. That was certainly the hope of the legislators in 2013, but there has been some considerable erosion of that principle since then, and a new case last month seems to accelerate that process.
In the beginning there was the EAT decision of Chestertons, exploring the basis of a reasonable belief of a disclosure in the public interest. You may recall from our blog https://www.employmentlawworldview.com/who-is-the-public-in-public-interest-asks-the-tribunal/ that this concerned a claimant complaining that Chestertons were manipulating office profit figures to ensure that bonus figures for him and about 100 of his peers were reduced and shareholder returns boosted artificially. In that case, the EAT held that those affected by the reduced bonus and prospectively by an unrealistically high share price were collectively sufficient to amount to demonstrating “public interest”. Chestertons is due to go to the Court of Appeal in October this year.
Following this case, there was Underwood v Wincanton https://www.employmentlawworldview.com/new-uk-whistleblowing-case-less-scary-for-employers-than-it-appears-so-far/ where it was held that it was not possible to strike out a claim of whistleblowing without hearing all the evidence where it was alleged that overtime was denied to just four drivers who were seen as unnecessarily fastidious about the health and safety checks on their vehicles. As we said at the time, however, that case was about the very high threshold of feebleness required before a case will be struck out for want of any prospects of success. We do not yet know whether the interests of four lorry drivers in their overtime and of the public in having Wincanton’s lorries particularly scrupulously vetted before setting out on their travels will be enough to support that “reasonable belief” on Mr Underwood’s part. It would be a depressing prospect for employers if so.
This latest case, Morgan v Royal Mencap Society, is another case on strike out and a consideration of whether the claimant had any real prospect of showing at a full hearing that she reasonably believed her complaints were in the public interest.
Morgan had injured herself at work and was having problems with her knee after the injury. She made complaints, which she relied on as disclosures, that her working area was cramped and that this was adversely affecting her bad knee. When pressed by the Tribunal to demonstrate why she believed that these disclosures were in the public interest, she stated that she felt it would “shock the public to know the working conditions I was subjected to” and that “the subject matter also presents a threat to the health and safety of others”. She went on to say that “the public ought to know about charities who behave in this manner”.
The Employment Judge struck out Ms Morgan’s claim on the basis that, even putting her case at its highest, she could not reasonably believe that there was a public interest to the disclosures that she had made. It was a gripe about her own workplace only and of no possible interest to the public in general.
The EAT disagreed with the Judge and held that the case should proceed to full hearing to determine whether Ms Morgan did reasonably believe that her complaints were in the public interest.
One can have some sympathy with the approach taken by the Judge at first instance. Ms Morgan’s complaints were very specifically about her workstation and in the particular context of a knee injury suffered by her. Could it really be said that there is any element of public interest to this claim or that Ms Morgan reasonably believed that there was? However, remember that, like Underwood, this is not about whether the claim is a good one, but whether it is so irretrievably hopeless that even without hearing the evidence about Ms Morgan’s thought processes, it is clear that she will fail. At least until the Court of Appeal in Chestertons sheds some light on what constitutes the public interest (100 estate agents, 4 lorry drivers, possible buyers of shares, road users near Wincanton depots?, etc.) it cannot be said that this is the case, ruled the EAT here.
I think that the EAT could properly have taken a harder line in this case. This is precisely the type of case that Parliament sought to disallow through its amendment to the law. Surely post-2013, there has to be more to it to get home on this point, than to simply assert that the public would not be impressed if the cramped working conditions were seen? That would leave the door wide open to people with a highly-developed sense of their own significance to argue that the “public would be shocked” by the way that manager spoke to me, the food in the canteen, the temperature in my office, your handling of my appraisal, my pay relative to market or to my peers, etc., even if those issues were legally substandard to some extent. The purported health and safety angle could have legs in the right case – if the risk were serious, even if only to a handful of people, then a Tribunal might accept that it was in the public interest to guard against that harm. But here we seem to be talking simply about a cramped space, not something which Ms Morgan claims has actually injured either her or anyone else. It must surely be a struggle, not so much uphill as vertical, to show a reasonable belief that one limited work space represents a health and safety risk of interest to the public.
The case has been remitted to the Employment Tribunal for a full hearing of the evidence. It remains to be seen whether the Tribunal accepts Ms Morgan’s evidence that she genuinely and reasonably believed that her complaints were in the public interest. If it does accept her view, we are in practical terms back to the pre-2013 position where employees can raise largely or entirely self-serving complaints and then rely on them to demonstrate that they have “blown the whistle”. That would be a most regrettable conclusion for employers.