Whistleblowing - Is it up to Employers to Decide If Disclosure Is Protected?
Where a worker makes a 'protected disclosure' (ie a disclosure which qualifies for protection under whistleblowing legislation) and is dismissed principally by reason of that disclosure...
... their dismissal will be automatically unfair. But will this be the case where an employer genuinely believes that a disclosure is not 'protected' under the whistleblowing legislation? This issue was considered by the Court of Appeal in Beatt v Croydon Health Services NHS Trust.
The Facts
Dr Beatt was employed as a Consultant Cardiologist at Croydon University Hospital NHS Trust (the Trust) in what had once been described as a 'dysfunctional' cardiology department. Following an incident in which a patient tragically died, Dr Beatt made a number of 'protected disclosures', including concerns about the Trust's decision making and the safety of its patients.
The Trust considered that Dr Beatt's claims were vexatious and unsubstantiated. Following disciplinary proceedings, Dr Beatt was dismissed for gross misconduct.
The Employment Tribunal (ET) concluded that Dr Beatt's dismissal was unfair.
The Employment Appeal Tribunal disagreed with the ET's finding that the protected disclosures had been the principal reason for Dr Beatt's dismissal. It concluded that the ET had failed to identify why it did not believe the Trust's evidence that the dismissal was by reason of Dr Beatt's conduct.
The Court of Appeal's Decision
The Court of Appeal agreed with the ET and concluded that the tribunal's judgment recognised that Dr Beatt had made protected disclosures and that this was the principal reason for his dismissal.
In rejecting the Trust's case, the court identified two key questions:
- Is the making of the disclosure the reason for the dismissal?
- Is the disclosure in question protected within the meaning set out in the Employment Rights Act (ERA)?
Best Practice for Employers
- The Court of Appeal in this case noted that if liability under whistleblowing legislation did not arise where an employer did not believe the employee had made 'protected disclosures', this would significantly reduce the scope of the protection afforded to whistleblowers.
- Tribunals will first examine the reasons for the employee's dismissal. They will then conduct an objective assessment of whether the disclosure qualifies for protection.
- You should not allow your view of a whistle-blower as a difficult colleague or an awkward personality to cloud your judgment about whether the disclosures in question do in fact have a reasonable basis. This will be judged by the tribunal.
- You should therefore only dismiss if you are confident that the disclosures in question are not protected or where a distinction can clearly be made between the disclosures themselves and the manner in which they are made.