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Employee’s complaint about cramped working conditions could amount to whistle blowing

Posted by TonyBrownEmploymentSolicitor on June 9, 2016

The objective of  whistle blowing legislation is to protect workers from victimisation for raising concerns about wrongdoing in the workplace. As long as the worker genuinely believes that the alleged malpractice has occurred and their belief is reasonable, it does not matter that the allegation turns out to be wrong.

However, the allegation of malpractice is not protected unless the employee reasonably believes they are making it in the public interest. The public interest requirement was introduced to prevent workers relying, as they were previously able to do, on alleged breaches of their own contract of employment as whistle blowing reasons.

However, the practical impact of the change in the law is unclear.

In the next case, the EAT decided that the tribunal wrongly struck out an employee's whistle blowing claim at a preliminary hearing on the basis that she had no prospect of showing that she reasonably believed her complaint about her cramped working conditions was in the public interest.

The employee in that case brought a tribunal claim against her previous employer alleging that she had been constructively unfairly dismissed because of her public interest disclosures about health and safety. The disclosures relied on were the Claimant’s complaints about cramped working conditions which were adversely affecting her injured knee and causing her discomfort.  

The Claimant stated that she believed that her disclosures were in the public interest because the employer was a publicly financed charity and the public would be interested to know how it treated its employees.

The tribunal struck out the Claimant’s whistle blowing claim on the grounds that the Claimant’s disclosures about cramped working conditions were not a matter of public interest and the Claimant could not have a reasonable belief that they were.

The EAT upheld the Claimant’s appeal, ruling that the tribunal should have allowed the whistle blowing claim to proceed to a full hearing. Remitting the case back to the tribunal, the EAT stated that the public interest requirement could only be determined after a consideration of all the evidence at a substantive hearing.

 Comment

Despite the widely held belief that the “public interest” test would exclude claims relating to personal grievances, this decision demonstrates that complaints about the employee’s own contract or working conditions can still meet the public interest test.  

The decision is also a reminder that it is the reasonable belief of the employee that is important, not whether or not the matter is actually in the public interest,

Employers need to look carefully at any grievances raised by employees in case they could be construed as a protected disclosure under whistle blowing disclosure.

Warning - this article is provided for information only and is not a substitute for legal advice. You should obtain specific, personal advice about your circumstances and not rely on the information or comments in this bulletin.