Employment Law Case Update - May 2015
Burnetts' employment law solicitors look at the latest case law updates.
Since the law changed last year, we have been wondering how strictly Tribunals would interpret the new whistleblowing rules which require disclosures to be “in the public interest” if the worker is to benefit from whistleblowing protection. The decision in the recent case of Chestertons v Nurmohamed is a good indication.
Mr Nurmohamed was responsible for the sales department of the Mayfair office, of Chesterton Global Ltd (“Chestertons”), a firm of estate agents.
Mr Nurmohamed discovered discrepancies in the profit and loss accounts for Chestertons. Between August and September 2013 he made three alleged protected disclosures about those discrepancies.
When Mr Nurmohamed’s employment was subsequently terminated, he claimed that these disclosures were the real reason for his dismissal and brought claims in the Employment Tribunal. The Employment Tribunal found that Mr Nurmohamed had been unfairly dismissed and that he had been subjected to detriments on the grounds that he had made protected disclosures. Whilst recognising that the person Mr Nurmohamed was most concerned about was himself, the Tribunal was satisfied that he did have the other office managers in mind when he raised his concerns, and that this concern for others was enough to satisfy the public interest test.
By the time the case reached the Employment Appeal Tribunal (“EAT”), Chesterton’s had accepted that Mr Nurmohamed’s dismissal was unfair. However, they challenged the finding of whistleblowing arguing that the Tribunal’s interpretation of the public interest test was flawed.
In its recent decision, the EAT made it clear that an individual contractual dispute would not normally satisfy the public interest test but a disclosure relating to a small group of people may do so depending upon the facts of the case. In Mr Nurmohamed’s case, the breach affected other people as well as Mr Nurmohamed himself and the EAT concluded that the disclosures were made in the reasonable belief that the information affected up to 100 senior managers at Chestertons. The EAT felt that this was enough to mean that the disclosure was “in the public interest” after all.
This decision, although not unexpected, will be disappointing for employers. The purpose of the statute is to encourage responsible whistleblowing. However, it seems that the inclusion of the public interest test may do no more than prevent a worker from relying upon a breach of contract which just affects him or her. If the employee can show that other employees are affected by the same breach, then the suggestion that an otherwise qualifying disclosure should be protected is likely to succeed even if there are no wider public implications.
The recent case of NHS Direct v Gunn is a cautionary tale for an employer looking to make changes after a TUPE transfer.
Mrs Gunn suffered from rheumatoid arthritis and was considered as disabled. She had been working for Shropshire Doctors in the "111 service". Shropshire Doctors had agreed an adjustment to Mrs Gunn’s working practices as a result of her disability and had reduced her contractual hours to eight and a half hours a week,
In late 2012, it was decided to transfer the 111 service from Shropshire Doctors to NHS Direct. Mrs Gunn was eligible to transfer as part of that process but was told by NHS Direct that she would have to work at least 15 hours a week after the transfer. Mrs Gunn didn’t think that she would be able to cope with that. She suggested a 10 hour week instead but NHS Direct refused so Mrs Gunn objected to the transfer and accepted a different role with Shropshire Doctors on less pay and working fewer hours.
Mrs Gunn then brought a claim against NHS Direct. She sued them for disability discrimination arguing that they had breached their duty to make reasonable adjustments.
NHS Direct applied to have the claim struck out on the basis that Mrs Gunn had never become their employee and, because the discussions had taken place during the negotiations over a TUPE transfer, they argued that she wasn’t a “job applicant” in the true sense of the word so the Tribunal did not have jurisdiction to consider the claim.
However, the Employment Tribunal decided that Mrs Gunn was protected because, the fact that NHS Direct had made an offer of new terms to Mrs Gunn meant that she had been applying for a new role and was protected under the Equality Act as a “job applicant”.
NHS Direct appealed but the EAT found in favour of Mrs Gunn. The EAT accepted that the TUPE situation meant that this couldn’t be seen as a recruitment process. However, NHS Direct had argued that it could change Mrs Gunn’s terms and conditions because there was an Economic, Technical or Organisational Reason resulting in a reduction in the numbers in the workforce. With that “redundancy situation” in mind, the EAT decided that NHS Direct had made an "offer of suitable alternative employment". This made her an applicant and meant that the terms of the Equality Act had to be respected during the process of considering Mrs Gunn for that alternative vacancy.
There are a number of things that employers should take from this. Firstly, a reminder about the risks of trying to change terms and conditions after a transfer, secondly the fact that the transferee (the organisation taking the staff) isn’t necessarily safe from a claim when an employee opts out and objects to the transfer, and perhaps most importantly, that transferee’s need to look at all possible claims (including discrimination and possible claims from those left behind) rather than just being wary of possible breaches of TUPE when looking at the risks arising from the transfer.
Any employer in a TUPE situation should take legal advice to make sure that they protect themselves as far as possible. Natalie Ruane at Burnetts (who can be contacted by phone on 01228 552222 or email firstname.lastname@example.org would be happy to speak to any employers going through this process.
About the author
Natalie is a Partner and leads the Employment Law & HR team and specialises in education.
Published: Tuesday 26th May 2015