Blowing the whistle about contractual terms
Workers who report wrongdoing by their employer and third parties (blow the whistle) are protected against victimisation and dismissal. The categories of wrongdoing (as set out in the legislation) are on the whole quite wide and previously (according to the case of Parkins v Sodexho [2002] IRLR 109) could include a breach of a worker's own employment contract.
However, the law was amended so that all disclosures made on or after 25 June 2013 would only count as qualifying disclosures if the worker reasonably believed that that the disclosure was "in the public interest". This amendment was intended to limit workers being able to use the law to complain about their own contracts.
However, in the case of Underwood v Wincanton plc , the EAT has held that an employee can be protected by the whistleblowing provisions when making a disclosure about their contractual terms where the disclosure affects a group of employees (and not just the individual).
Employers will often have a number of employees (or groups of employees) who are on the same contractual terms and so in practice it is likely to be fairly easy for workers to demonstrate that disclosures affect a group of people (and not just themselves). It does therefore seem (following this and other case decisions) that the amendment to the law does not provide an absolute barrier. This case is therefore a useful reminder to employers to consider carefully whether workers complaining about contractual terms are covered by whistleblowing protection.
In Underwood v Wincanton plc, the EAT has held that an employee can be protected under the whistleblowing provisions of the Employment Rights Act 1996 for raising a contractual matter that affects a group of employees. Although S.43B ERA limits whistleblowing protection to cases where an employee makes a disclosure in the reasonable belief that it is ‘in the public interest’, that test can be satisfied by a group of employees raising a matter specific to their terms of employment”