Post-Termination Restrictions: Supreme Court to the Rescue
18th July, 2019
Céline Winham considers recent Supreme Court case which clarifies enforcement of post-termination restrictions in contracts of employment
By Andrew Knorpel, Head of the Employment team
This week, the Court of Appeal has been grappling with whether to uphold an injunction for a married man who has been involved in extra-marital activity. The Sun on Sunday argued that it was in the public interest to publish details of the story and, taking into account that the story had been published in Scotland and many overseas jurisdictions, the Court of Appeal decided on Monday that it should lift the injunction against publication. However, PJS (as the celebrity claimant is known) has appealed and the Supreme Court is now to decide on the issue.
But outside the entertainment sphere, the issue of “public interest” has also raised its head in a number of whistleblowing cases in the last year. The whistleblowing provisions were originally brought into force by the Public Interest Disclosure Act 1998 from the content of which the words “public interest” were remarkably missing. The EAT then held that a breach of a whistleblower’s own contract might amount a “qualifying disclosure” (with no public interest element at all). As a result, the Government amended the whistleblowing legislation as of 25 June 2013 so that a worker must now show that they reasonably believed that their disclosure was “in the public interest”.
But a series of judgments by the EAT has shown that not as much as you thought might be required to qualify as being “in the public interest”. Firstly, in Chesterton Global Ltd (t/a Chestertons) v Nurmohamed (April 2015), the EAT agreed that the claimant’s disclosure was protected when he complained about manipulation of his employer’s accounts which he reasonably believed would result in lower commission payments for around 100 managers (including himself). The fact that the employer was not a public body and that the disclosure was not of interest to the public as a whole were not relevant to the “public interest” test.
In Underwood v Wincanton plc (August 2015), the EAT held (following the Chestertons case) that “public” could be interpreted as part of the public, including other people employed by an employer on the same terms as a claimant whistleblower. Therefore, a complaint by the claimant and three colleagues about the way in which overtime was allocated amongst them could amount to a protected disclosure where they reasonably believed that their complaint was “in the public interest”.
More recently, the EAT held in the case of Morgan v Royal Mencap Society (January 2016) that complaints about cramped working conditions could amount to protected disclosures relating to health and safety where the claimant reasonably believed her complaint to be “in the public interest”. Even though the claimant’s complaints were focussed on how her working conditions affected her injured knee and lower back, her assertion that the issues which she had raised amounted to a risk to the health and safety of other staff had to be tested in evidence.
Finally, the Chestertons case has been appealed and will be heard by the Court of Appeal in October 2016. In the meantime, beware of taking detrimental action against those who whistle while they work, even where their complaint appears to involve no public interest element.
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