Employment Law Cases
It's not up to the employer to decide if a whistleblowing disclosure is 'protected'
Beatt v Croydon Health Services NHS Trust
It is irrelevant that the employer genuinely believes an employee’s disclosure is not protected. A disclosure will be protected if it meets the statutory conditions in the Employment Rights Act 1996 - and this is an objective test. If the employer dismisses the employee for making a disclosure that a tribunal later finds was protected, the dismissal will be automatically unfair.
The dismissal of an employee will be automatically unfair if the reason, or principal reason, is that they have made a protected disclosure (ERA, s. 103A). But what is the position where the employer dismisses an employee where it genuinely believes the disclosure does not constitute a protected disclosure?
This case concerned Dr Beatt, a consultant cardiologist who, following the death of a patient, made a number of disclosures. His employer considered his claims were vexatious and unsubstantiated. Following disciplinary proceedings, he was dismissed for gross misconduct. A tribunal upheld his automatic unfair dismissal claim but this was overturned by the EAT. It disagreed with the tribunal’s finding that the protected disclosures had been the principal reason for Dr Beatt's dismissal. It held that the tribunal had failed to identify why it did not believe the trust's evidence that the dismissal was because of Dr Beatt's conduct. Dr Beatt appealed.
The Court of Appeal allowed his appeal; the tribunal had got it right. To determine if a dismissal is automatically unfair under s. 103A, two questions must be answered:
- Was the making of the disclosure the reason (or principal reason) for the dismissal?
- Was the disclosure in question a protected disclosure within the meaning of the ERA 1996?
Question 1 requires an enquiry into what facts or beliefs caused the decision maker to decide to dismiss. Was the reason the protected disclosure or something else? For question 2 the belief of the decision maker is irrelevant. If the reason (or principal reason) for the dismissal was the protected disclosure, it does not matter that the employer genuinely believed that the disclosure did not amount to a protected disclosure or was not made in good faith.
If liability under whistleblowing legislation did not arise where an employer did not believe the employee had made ‘protected disclosures’, this would, commented the Court of Appeal, significantly reduce the scope of the protection afforded to whistleblowers.
The following paragraph from the judgment sums up the issue nicely:
‘It is all too easy for an employer to allow its view of a whistleblower as a difficult colleague or an awkward personality (as whistleblowers sometimes are) to cloud its judgement about whether the disclosures in question do in fact have a reasonable basis or are made (under the old law) in good faith or (under the new law) in the public interest. Those questions will ultimately be judged by a tribunal, and if the employer proceeds to dismiss it takes the risk that the tribunal will take a different view about them. I appreciate that this state of affairs might be thought to place a heavy burden on employers; but Parliament has quite deliberately, and for understandable policy reasons, conferred a high level of protection on whistleblowers. If there is a moral from this very sad story … it is 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 … that a distinction can clearly be made between the fact of the disclosures and the manner in which they are made.’
Link to judgment: http://www.bailii.org/ew/cases/EWCA/Civ/2017/401.html
Originally the whistleblowing legislation provided that if a protected disclosure was not made in good faith then this prevented workers from having the protection of the whistleblowing legislation, but this changed in 2013 when the law was amended. It now says that even if made in bad faith, a disclosure can be a protected disclosure, it is just the compensation which might be reduced if there is a finding of bad faith.
This case reinforces the increased protection offered to whistleblowers and prevents employers escaping liability by simply saying that they had a genuine belief that it was not a protected disclosure. It either is or is not a protected disclosure and what the employer thinks is not relevant.