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Whistleblowing and employer’s belief

The Court of Appeal in the case of Beatt v Croydon Health Services has held that an employer cannot escape liability for automatic unfair dismissal in whistleblowing cases on the grounds that there was a genuine belief that the disclosures were not protected.

The Law

An employee must show they have made a protected disclosure before they can establish whistleblowing protection. To demonstrate a protected disclosure the employee must:

  • Have a reasonable belief that the information disclosed shows one or more of the six specified failings listed in the legislation at section 43B Employment Rights Act 1996 (in this case danger to health and safety);
  • Make the disclosure to one of the categories of people listed in the legislation at sections 43C to 43H Employment Rights Act 1996 (in this case the employer); and
  • Have a reasonable belief that the disclosure is made in the public interest (previously had to be made in good faith but this was removed for disclosures made after 25 June 2013).

Background

The Claimant was a consultant cardiologist at Croydon University Hospital NHS Trust (“the Trust”). The relationships between the Claimant and several colleagues were known to be strained. During a procedure, a patient died and the Claimant subsequently made a number of complaints regarding patient safety and insufficient staffing levels.

It was the Trust’s view that the claims were unsubstantiated and vexatious. In the Trust’s view the claims had been made in bad faith and motivated by the Claimant’s poor relationships with his colleagues. The Trust instigated disciplinary proceedings and dismissed the Claimant for gross misconduct.

The Claimant brought claims for automatic unfair dismissal on whistleblowing grounds.

Decision

The Employment Tribunal (“ET”) held that the Claimant had made protected disclosures and as this was the principal reason for his dismissal, he had therefore been unfairly dismissed. The Employment Appeal Tribunal disagreed. It found that the ET had failed to identify why it did not believe the Trust’s evidence that conduct (rather than any disclosure) had been the reason for the dismissal.

The Court of Appeal allowed the appeal and reinstated the ET decision. The Trust could not escape liability on the grounds that the dismissing officer had genuinely believed that the allegations were not protected. Whether a protected disclosure was made was to be objectively decided by the tribunal and the dismissing officer’s belief was not relevant to this question.

The Court of Appeal commented when making its decision that protection for whistle-blowers would be limited if liability could only arise when the employer itself believed that the disclosures were protected.

Comment

Whistle-blowers have a high level of protection and dismissing employees who have ‘blown the whistle’ is highly risky. Employers should be aware that claims on the ground of whistleblowing can be costly as the cap on compensation is removed. This is not to say that a whistle-blower can never be dismissed but specialist advice should always be taken first.

If you would like to speak to us about whistle-blowing issues, please feel free to email us  or contact us on 0191 282 2880 for a no obligation chat.

 

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