First of all, this case is not as bad for employers as it looks.  Second, however, it still has ample time to become so.

Back in 2013, the Employment Rights Act was amended to stop employees claiming that they had blown the whistle (and so gained all the protections which go with that) through random griping about some aspect of their own contract of employment.  The change was to require the employee also to have a reasonable belief that his disclosure of wrongdoing was “in the public interest”, something which only the most self-centred workers could generally claim about their employment grievances.

That did of course beg the question of what “the public interest” entails.   That was looked at in detail in Chestertons earlier this year.   In that case, the Employment Appeal Tribunal concluded that 100 of the claimant’s colleagues plus an unspecified population of prospective buyers of Chestertons’ shares was enough to constitute the public for these purposes.   The next instalment in that case is due for hearing in the Court of Appeal in October next year, but in the interim what is an Employment Tribunal to do about cases of this sort?

In Underwood v. Wincanton Plc reported this week we see part of the answer.  Mr Underwood was dismissed in June 2014, he said as a result of his protected disclosures.  One of these was a complaint which he and three of his lorry driver colleagues submitted about allocation of overtime.  “Taking a benevolent approach“, the Employment Judge was just about able to make out a “suggestion (and I put it no higher than that”) that overtime was denied to those drivers who were particularly punctilious about health and safety checks on their vehicles.  In the initial Employment Tribunal hearing (before Chestertons), the claim was given short shrift – following the amendment to the ERA in 2013, the Judge made a robust decision that there was no way a purely self-serving complaint by four colleagues about not getting enough of the overtime pie was made in the public interest.  Therefore, the allegation was struck out for want of any reasonable prospect of success.

But shortly after that first instance decision, out came Chestertons. That made it clear that a relatively limited number of one’s work colleagues could potentially constitute the public for these purposes, especially if coupled with the faint (not to say completely invisible) inference that other road users might be affected by health and safety failures in lorry checks.  In the light of that decision it could no longer be said that the grievance of Underwood and his three disgruntled mates had no reasonable prospect of being found to be a protected disclosure.  Therefore, the EAT has had to remit the point back to the Tribunal.

BUT this is a product of the very high degree of certainty required before any part of a Tribunal claim can be properly struck out on those grounds.  It is NOT a finding that three colleagues is necessarily enough to constitute the public, NOR that Underwood actually had any reasonable belief that the public really needed to know that he felt badly treated on those grounds.  Those points remain to be decided by the original Tribunal and it is entirely possible (and from the employer’s perspective rather to be hoped for) that on the facts, Underwood will fail on either or both of them.

Lessons for employers

If this decision is a finding of anything, then it is that the Tribunals will take a very generous view of how specific a complaint must be in order to become protected.  It is clear from the EAT’s judgment that the complaint was substantially incoherent (“somewhat opaque” in judge-speak).  “The precise sense or meaning of these assertions is not entirely clear“, said the Judge delicately, “[so] I have simply made my own attempt to summarise the gist and it is not even easy to be sure that it is a correct summary of the gist“.  On such foundations does law-making rest, apparently.   The lesson for the employer is therefore that it will never be wise to discount an employee complaint as a potentially protected disclosure, however garbled, if (i) it refers to anyone else at all, irrespective of number or identity, as potentially affected; and (ii) with a microscope and the forbearance of a saint, it is possible to have an educated guess at what is actually being complained about.

The best defence to these cases remains not to argue on grounds like these about whether a grievance is technically a protected disclosure, but simply to maintain evidence of the thought processes behind the dismissal sufficient to show beyond rebuttal that it was for some other unrelated reason.  Then it simply doesn’t matter whether the grievance was protected or not.