One of the driving forces behind the introduction of this test was the case of Parkins v Sodexho Ltd. This much criticised judgement found that a disclosure by an employee regarding an alleged breach of a legal obligation by his employer under his own contract of employment was capable of amounting to a protected disclosure, yet it was difficult to identify any element of public interest whatsoever.
The public interest test was introduced without any consultation and was immediately criticised as going beyond what was necessary and risking unfairly limiting the protections available to whistle blowers. However, we have not had to wait long to find out how the Tribunal will apply this test when dealing with disclosures connected to the terms of contracts of employment.
In the case of Underwood v Wincanton Plc the Claimant was a lorry driver who made a written complaint along with three other lorry drivers stating that overtime was not being distributed fairly amongst employees. Mr Underwood argued this was a breach of their contracts of employment. The Employment Tribunal initially struck out the claim on the basis that the claim related to a group of employees concerning the terms of their contracts, and that this was not enough to meet the new "public interest" test.
The Claimant appealed the decision to the EAT who, when overturning the Tribunal's decision, recognised that the original decision was handed down before any real guidance on the meaning of "public interest" was issued, and before the decision in the case of Chesterton Global Limited t/a Chestertons v. Nurmohamed.
We previously reported on Chestertons here which provided authority for the fact that the public interest test can be met by a relatively small group of persons who may have the same personal interests or employer as the individual making the disclosure. This case also highlighted the fact that the issue is not whether the disclosure is actually within the public interest, but that the person making the disclosure has a reasonable belief that the disclosure is made in the public interest.
This may not be the last word on the matter however as the Chestertons case is the subject of an appeal to the Court of Appeal, listed for October 2016.