01 June 2017 #Employment
It is automatically unfair to dismiss an employee on the basis that he or she has made a protected disclosure, more commonly known as ‘whistleblowing’. The Court of Appeal, in Beatt v Croydon Health Services NHS Trust, has made clear that an employer’s belief that a disclosure was not protected is irrelevant in such dismissals.
Dr Beatt, a consultant cardiologist of the Trust, raised concerns over staff levels and patient safety. The Trust considered that some of his claims were part of a campaign against a colleague and were calculated to damage the department. Dr Beatt was subsequently dismissed for gross misconduct.
The Court of Appeal found that the Claimant had been unfairly dismissed for making a protected disclosure. In its arguments on appeal, the Trust attempted to argue that the dismissal could only be unfair if they believed the employee had made a protected disclosure. However, this was rejected. The Court of Appeal identified two questions which need to be answered in these situations: (1) whether the making of the disclosure was the reason for the dismissal; and (2) whether the disclosure amounted to a protected disclosure under the statutory tests, the latter being an objective test based on the legal tests rather than the belief of the employer.
This Judgment is unsurprising as, for policy reasons, a high level of protection is granted to whistleblowers. Quoting the Judge “if there is a moral from this very sad story” it’s that employers should proceed to the dismissal of a whistleblower only where they are as confident, as they reasonably can be, that the disclosures in question are not protected or, following cases like Panayiotou, that a distinction can clearly be made between the fact of the disclosures and the manner in which they are made.