Employment Tribunals
Whistleblowing: EAT says 'reasonable belief in public interest' is low threshold 13 April 2015
Can a disclosure be made in the 'reasonable belief it is in the public interest' if it relates to a contractual dispute affecting a group of staff, and not the wider public?
Yes, held the EAT in Chestertons v Nurmohamed .
With thanks to Daniel Barnett’s employment law bulletin which provides the details of the case.
The whistleblower, a director in the Chestertons' estate agency's Mayfair office, made a protected disclosure by complaining that it was overstating costs for its London office, thus driving down the bonuses for him and 100 senior managers.
The employment tribunal found that the disclosure was made with a reasonable belief that it was 'in the public interest', and the Employment Appeal Tribunal upheld the decision.
The EAT stated that an individual contractual dispute would not normally satisfy the public interest test (following the reversal of Parkins v Sodexho by the Enterprise and Regulatory Reform Act 2013 ) but a disclosure relating to a relatively small group of people may do so; what is sufficient is necessarily fact-sensitive. The purpose of the statute is to encourage responsible whistleblowing, and the public interest test can be satisfied even where the basis of the disclosure is wrong and/or there was no public interest in the disclosure, provided that the worker's belief that the disclosure was made in the public interest was objectively reasonable. The 'public interest' requirement did no more than prevent a worker from relying upon a breach of his own contract of employment where the breach is of a personal nature and there are no wider public interest implications.
Stress at Work - Foreseeability of Injury 14 April 2015
Was an employer liable for psychiatric illness caused by occupational stress?
Not on the facts of Easton v B&Q plc , held the High Court.
With thanks to Daniel Barnett’s employment law bulletin which provides the details of the case.
The Claimant was a manager of a supermarket. He was very successful. However, he became ill through occupational stress and alleged this was due to the negligence and/or breach of statutory duty on the part of B&Q. A significant plank of Mr Easton's case was the lack of risk assessment by the employer in relation to stress. Mr Easton was away from work with depression for about five months and received medication and therapy. When he returned it was on a phased basis at a store nearer his home address which was less busy than the store he previously managed. In the end though, this did not work out and he was recertified as unfit for work due to depression, and launched a claim. The trial Judge relied upon the leading authority of Hatton v Sutherland [2002] ICR 613 on claims by employees for damages in respect of psychiatric injury caused by stress in the workplace. The question in this case was whether the injury was reasonably foreseeable by the employer. There is an excellent summary of the principles in Hatton at paragraph 50 of the decision. According to the trial Judge an employer has no general obligation to make searching or intrusive enquiries and may take at face value what an employee tells him. In particular, an employee who returns to work after a period of sickness without qualification is usually implying that he believes himself to be fit to return to the work he was doing before. The foreseeability threshold in stress claims is therefore high. On the facts of the case Mr Easton's claim failed at the first hurdle 'foreseeability' in respect of his first breakdown. This was because of his long managerial career in charge of large retail outlets with no psychiatric history. As to the relapse suffered by Mr Easton, B&Q clearly now knew he had suffered a psychiatric illness. But the fact he was still taking medication was not determinative as to how his employment should have been handled. There are many people holding down demanding jobs who still require medication. On the facts, given the high standard of proof required, the relapse was also not foreseeable by the employer.
CIPP Policy News Journal
25/04/2016, Page 64 of 453
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