Employers will be aware that in most circumstances an employee needs to have at least two years service to bring a claim of ordinary unfair dismissal in the Employment Tribunal. This usually means that the decision to dismiss an employee is less risky when they have less than two years service as they will be unable to bring a claim of ordinary unfair dismissal.

However, employers need to be mindful that the majority of automatic unfair dismissal claims (and some other claims) do not require the employee to have a qualifying period of service to issue a claim. Examples of automatic unfair dismissal reasons that do not have a qualifying period include:

  • For reasons connected with pregnancy and childbirth
  • For health and safety reasons
  • For making a protected disclosure (Whistleblowing)
  • In connection with an application for flexible working
  • Relating to the National Minimum Wage

Whistleblowing claims can be costly for employers because the compensation that can be awarded to a claimant is uncapped. To pursue this claim, the claimant must show that there is a qualifying disclosure of information. The information disclosed, must in the reasonable belief of the worker, tend to show that one of the following has occurred, is occurring, or is likely to occur:

  • A criminal offence
  • Breach of any legal obligation
  • Miscarriage of justice
  • Damage to the health and safety of any individual
  • Damage to the environment
  • Deliberate concealing of information about any of the above

A disclosure made on or after 25 June 2013 will only be a qualifying disclosure if the worker reasonably believes that the disclosure is “in the public interest”.

In the recent case of Underwood v Wincanton Plc, the Employment Appeal Tribunal considered whether a complaint about contractual matters can be made in the “public interest”.

The employee in this case claimed that he had made a protected disclosure and as a result had been subject to a detriment by his employer. A written complaint was made by the employee and three other lorry drivers that overtime had not been allocated fairly and that this was in breach of their contracts of employment, which the claimant said was the protected disclosure.

In the first instance, the Employment Tribunal struck out that claim finding that the complaint was not in the “public interest” because it was about a group of workers contracts of employment.

The Employment Appeal Tribunal overturned this decision noting that this decision had been made before any real guidance had been given as to the meaning of “public interest” and before the decision in Chesterton Global Ltd v Nurmohamed. This case concerned a complaint about the alleged miscalculation of commission payments due to approximately 100 managers and whether this was in the public interest. The Employment Appeal Tribunal held that provided a section of the public rather than simply the individual was concerned, this was adequate to satisfy the test.

These cases demonstrate an employee friendly approach to the interpretation of “public interest”. Despite the change to the law in June 2013 that disclosures must be made in the public interest, it appears that employees can complain about breaches to their own contracts of employment, which will amount to a whistleblowing claim. This is a way in which some employees may choose to plead their claim where they have accrued less than two years service and are unable to bring an ordinary unfair dismissal claim.

It is likely that there will be further guidance from the Employment Tribunals on the definition of “public interest” for whistleblowing claims in due course. For more information regarding this or any aspect of unfair dismissal claims, please contact us.

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