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Whistleblowing: Court of Appeal rules on “public interest” test

The Court of Appeal has delivered its judgment in the recent whistleblowing case of Chesterton Global Ltd and another v Nurmohamed, the first case of its kind to reach the Court of Appeal.

This is a significant case that sets out the approach to be taken by tribunals when deciding if a disclosure is “in the public interest”, a requirement for statutory whistleblowing protection. This “public interest” test was introduced in June 2013 in order to prevent workers from using whistleblowing protection laws to bring claims where they make disclosures about a breach of their own employment contract.

Mr Nurmohamed, an estate agent, had successfully brought a claim in the employment tribunal for dismissal and suffering detriment as a result of making a protected disclosure. He had raised a concern that there were misstatements in Chesterton Global’s management accounts, which he alleged were designed to reduce the amount of commission paid to around 100 senior managers, including himself.

The Employment Tribunal decided that his disclosures were in the public interest. The tribunal’s decision was upheld by the Employment Appeal Tribunal. The employer appealed to the Court of Appeal. The Court of Appeal heard arguments on behalf of the employer and Mr Nurmohamed as to alternative meanings on what constitutes a public interest.  The court rejected the arguments of Public Concern at Work and the arguments on behalf of the employer. These were  that the interests affected by the disclosure should extend beyond the employer’s workforce.

The Court noted that the issue is not whether the tribunal thinks that the disclosure was in the public interest, but whether the whistleblower thought so, and whether that belief was objectively reasonable at the time. There are no “absolute rules” about what it is reasonable to view as being in the public interest. The number of people affected by the issue is a relevant factor although tribunals should be cautious about treating this as determinative. There will usually be other relevant factors such as the nature and extent of the interests affected, the nature of the wrongdoing (particularly where it is alleged to be deliberate), and the identity of the alleged wrongdoer. Therefore, whilst employers and employees may consider the scope of the public interest test to be somewhat limited by this ruling, the Court of appeal has not given whistleblowers a blank cheque.

 

 

Whistleblowing: Court of Appeal rules on “public interest” test

Good Work: Taylor Review on Modern Working Practices

The much anticipated independent review of modern working practices by Matthew Taylor, Chief Executive of the Royal Society of Arts, was published this week (11 July 2017).

The review suggests a national strategy to provide good work for all “for which government needs to be held accountable”.  It takes the following into consideration when it talks about “good work”: wages, employment quality, education and training, working conditions, work life balance, consultative participation and collective representation. Its key message is that everyone should enjoy a “baseline” of protection and be given routes to enable progression at work.

The full review can be accessed via the following link:

https://www.gov.uk/government/publications/good-work-the-taylor-review-of-modern-working-practices

Some of the key recommendations are set out below. It remains to be seen whether and when the government might implement any of them:

Worker status

  • Updating legislation to lay out exactly the legal tests for types of worker; this should no longer be by reference to case law.
  • Keep the distinction between employees and workers but rename workers who are not employees ‘dependent contractors’.
  • In relation to ‘dependent contractor’ status, the requirement that someone perform work ‘personally’ for an employer should not be relevant.
  • Place more emphasis on control in the definition of dependent contractor status. This should be “not simply in terms of supervision of day-to-day activities”.

Terms of employment

  • All employees and dependent contractors should receive a written statement of employment particulars at the outset of their job. This must cover their entitlements, how these are calculated,  and the method of payment.
  • Failure to provide such a written statement should entitle  all employees or dependent contractors to bring a claim for compensation.
  • Workers on zero hours contracts should have a right to request a contract that guarantees their hours after 12 months in the job.

Wages

  • The National Minimum Wage should be increased for hours that are not guaranteed.
  • The government should explore ways in which workers can negotiate for more guaranteed hours.
  • The twelve week reference period for holiday pay should be extended to 52 weeks;  to be fairer for those who have inconsistent work patterns.
  • Workers should have greater flexibility with their annual leave entitlement, including being able to receive ‘rolled-up’ holiday pay in real time.

Employment rights

  • It should be made easier for gig workers to demonstrate continuous service in respect of employment rights which demand a period of continuous employment before an individual is eligible.
  • Statutory sick pay (SSP) should become an employment right for all workers, and should accrue in the same way as holiday pay.
  • Returning from time off for sickness should be given the same protection as returning from maternity. This is conditional on the individual having engaged in the Fit for Work service.
  • The government should decide whether temporary changes to contracts could be requested by individuals, in particular where they have caring requirements.

Agency workers

  • Agency workers who have worked for the same hirer for 12 months  should have the right to request a direct employment contract with the hirer.
  • ‘Swedish derogation’ contracts should be banned.

Platform working

  • Companies using technology to commission work should use data so that workers can be given a guide as to their potential earnings. In this way workers can freely choose lower paid jobs knowing what they are likely to earn.
  • Piece-rate legislation should be altered so that workers who are rewarded on output should earn at least 20% more than the National Minimum Wage.

Employee voice

  • There should be a review of information and consultation regulations. These should be extended to include all types of worker and the threshold for implementation reduced from 10% to 2% of the workforce making a request.
  • Companies over a certain size should have to disclose their employment model. This would include information such as their proportion of zero hours contracts.

Tribunals and enforcement

  • Individuals should be able to have their working status determined by an employment tribunal without having to pay any tribunal fees. In addition, the burden of proof should be on the employer, rather than the worker.
  • Where employers have repeatedly ignored law, tribunals should be required to consider imposing “aggravated breach” penalties and cost orders.

Tax and national insurance

  • National insurance contributions for employed and self-employed workers should be moved “closer to parity”.
  • An increase in National insurance contributions from the self-employed should be accompanied by an associated improvement in both pension provisions and family-friendly rights for the self-employed.
  • Electronic platforms (e.g. Paypal) should replace cash-in-hand payment for jobs.

Career progression

  • The government should endeavour to work alongside employers who employ a high proportion of gig economy workers to see how they can benefit from the apprenticeship levy.
  • More workers in the gig economy should use ‘digital badges’ or other forms of accreditation in order to carry verified approval ratings with them if they work for someone else.

 

Good Work: Taylor Review on Modern Working Practices