Whether an employer considers a disclosure to be protected is not relevant
Thu 13 Jul 2017
A disclosure is protected if it is deemed to be qualified. A disclosure is qualified if it meets any one of six criteria defined by statute including the disclosure of information which shows that the health or safety of any individual has been, is being or is likely to be endangered. The Employment Appeal Tribunal, in the case of Beatt v Croydon Health Services NHS Trust, overturned the decision of the Employment Tribunal, stating that conduct was the reason for dismissal of the claimant, not the protected disclosures. The Court of Appeal has overturned the decision of the Employment Appeal Tribunal, agreeing with the Employment Tribunal.
Dr Beatt, the claimant, was employed by the NHS Trust for seven years as a Consultant Cardiologist. Dr Beatt had a strained working relationship with several colleagues and the Royal College of Physicians described the department as “dysfunctional”. In June 2011, whilst Dr Beatt was involved in an invasive procedure, a patient died. Following this episode, Dr Beatt made various disclosures where he raised concerns over staff levels and patient safety in general as well as in relation to the patient’s death. The NHS Trust completed a report which considered Dr Beatt’s actions to be “entirely without merit and … gratuitous in nature”. Indeed, the NHS Trust felt Dr Beatt’s allegations lacked substance and were unproven. Dr Beatt was suspended and later dismissed for gross misconduct on the ground that he had made false accusations of poor patient safety and that he had made unfounded accusations against a colleague. Dr Beatt issued proceedings claiming automatic unfair dismissal on whistleblowing grounds.
The Court of Appeal allowed the appeal from the Employment Appeal Tribunal and rejected the NHS Trust’s case, identifying two principal questions:
1- whether the making of the disclosure was the reason (or the principal reason) for the dismissal; and
2- whether the disclosure in question was a protected disclosure under statute.
The first question looks at the facts or beliefs the NHS Trust, as the decision-maker, had when it chose to dismiss Dr Beatt. The Court of Appeal found that the disclosures were the principal reason for the dismissal. The second question is key and considers the relevance of whether the NHS Trust, as the employer, believed the disclosures were not protected even if the principal reason for dismissal was the disclosures themselves. The Court of Appeal set out that the test is an objective one and is to be determined by reference to statutory conditions. It is therefore irrelevant whether the NHS Trust thought the disclosures were protected or not. The Court of Appeal commented that the NHS Trust’s argument would limit the scope of the protection afforded by the whistleblowing provisions should liability only arise when the employer itself believed the disclosures for which the employee was dismissed were protected.
Underhill LJ in the Court of Appeal emphasised that “it is all too easy for an employer to allow its view of a whistleblower as a difficult colleague or an awkward personality (…) to cloud its judgment about whether the disclosures in question do in fact have a reasonable basis or are made (…) in the public interest”.
Employers need to be attentive and must consider whether any disclosures that are made are protected or not. A disclosure will be protected if it meets the statutory test which is objective, not subjective.