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Whistleblowing - Is it up to Employers to Decide if Disclosure Is Protected?

on Thursday, 20 July 2017.

When considering whether to dismiss an employee, employers should be cautious not to underestimate any disclosure made by an employee and whether this may amount to a protected disclosure under whistleblowing legislation.

Even where an employer genuinely believes that the disclosure is not protected, the courts may take a different view.

Beatt v Croydon Health Services NHS Trust - the Facts

Dr B (Dr B) 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 B made a number of disclosures, including concerns about the Trust's decision making and the safety of its patients.

The Trust considered that Dr B's claims were vexatious and unsubstantiated and did not consider that they amounted to a protected disclosure under whistleblowing legislation. Following disciplinary proceedings, Dr B was dismissed for gross misconduct due to Dr B's conduct.

The case reached the Court of Appeal (CA). The CA concluded that Dr B 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:

  1. Is the making of the disclosure the reason for the dismissal?
  2. Is the disclosure in question protected within the meaning set out in the Employment Rights Act (ERA)?

Best Practice

Whilst all employees may be faced with protected disclosures, we are seeing this increasingly often in the healthcare sector, for example, in relation to employees raising health and safety or malpractice concerns.

Employers should not allow their view of an employee as a difficult colleague or an awkward personality to cloud their judgment about whether the disclosures are protected under whistleblowing legislation. This will be assessed objectively by the tribunal.

Employers should act cautiously where disclosures have been made and only dismiss the employee concerned if they 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.

This is particularly relevant where employees have less than two years' service and the employer may ordinarily dismiss a difficult employee with relatively little process. This itself can prevent appropriate dialogue between the employee and the employer, whereby it may become clear that the employee considers their dismissal is as a result of their disclosure and that their disclosure is protected. Where a dismissal may be as a result of a protected disclosure, employers would be advised to follow a formal process with the employee, particularly as the employer could be penalised at a later date if a claim is brought and the employer did not act in accordance with the relevant ACAS code.

Another point to note, is that whistleblowing claims are particularly high risk for employers as the dismissed employee may make an application for interim relief. If granted, this will result in the employer having to continue to pay the employee's salary as normal up until the time of the hearing (whether or not it is agreed that the employee can return to work). Significantly, there is no requirement to re-pay this if the employee is ultimately unsuccessful.

We recommend that employers take a cautious approach and seek legal advice at an early stage.

For more information, please contact a member of our Employment Law team on 0117 314 5266.

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