In Beatt v Croydon Health Services NHS Trust [2017] EWCA Civ 401, a whistleblowing dismissal case, the Court of Appeal decided that an employer cannot escape a finding of automatically unfair dismissal if it genuinely believes that the employee's disclosure was not protected. Deciding if a disclosure is protected is an objective assessment for the employment tribunal as to whether the statutory conditions for protection are met.

Facts

Croydon University Hospital NHS Trust (the Trust) employed Dr Beatt as a consultant cardiologist. The working relationships between Dr Beatt and several of his colleagues were strained, and the cardiology department had once been described as dysfunctional. However, Dr Beatt held the head nurse, Sister Jones, in high regard.

Dr Beatt was involved in carrying out a cardiology procedure. Following complications, the patient died. During the operation, Sister Jones was suspended (although she had not actually been present during the operation).

Dr Beatt made several complaints that it was irresponsible of the Trust to suspend Sister Jones in the middle of a working day when she might be expected to have clinical responsibility. He also complained that there had been a delay in obtaining a particular piece of equipment which, if Sister Jones had been contactable, she would have been able to find more easily and that delay had contributed to the patient's death. He also complained that it was questionable whether there were sufficient nursing staff to ensure safe performance of procedures in her absence.

The Trust took the view that Dr Beatt had made unsubstantiated and unproven allegations in bad faith, which were motivated by his personal antagonism towards his other colleagues, and dismissed him for gross misconduct. Dr Beatt brought several claims, including automatic unfair dismissal on whistleblowing grounds.

Employment tribunal decision

The employment tribunal (ET) concluded that Dr Beatt had made a number of protected disclosures and that this was the principal reason for his dismissal. Accordingly, the ET held that he had been automatically unfairly dismissed for whistle-blowing. The Trust appealed.

Employment Appeal Tribunal decision 

The Employment Appeal Tribunal (EAT) accepted that Dr Beatt had made protected disclosures but overturned the ET's decision on the basis that it had failed to identify why it did not believe the Trust's evidence that conduct had been the reason for dismissal. Dr Beatt appealed.

Court of Appeal decision

The Court of Appeal reinstated the ET's decision. It held that the Trust could not escape liability for whistle-blowing dismissal on the basis that the dismissing officer had genuinely believed that Dr Beatt's allegations were not protected disclosures.

The Court found that in whistle-blowing cases, there were two questions:

  1. Whether the making of the disclosure was the principal reason for the dismissal – this question requires a subjective enquiry into what facts or beliefs caused the dismissing officer to decide to dismiss.
  2. Whether the disclosure was a protected disclosure – this is to be decided objectively by the ET, and the dismissing officer's belief is not relevant to this question.

The Court commented that it would enormously reduce the scope of the protection for whistle-blowers if liability could only arise where the employer itself believed that the disclosures were protected. It went on to say that in many cases, the employer will not turn its mind to whether the disclosure is protected or would be convinced that the disclosure was unprotected eg on the basis that the disclosure was not in the public interest. The Court did not believe that Parliament could have intended employees to be unprotected in those sorts of cases.

Comment

Dismissing a whistle-blower is likely to be a high risk strategy if the decision to dismiss was taken because the employer believed that the disclosure was not protected, for example because the employee did not have a reasonable belief that is was made in the public interest or that the information disclosed tended to show one of the six specified types of failings. As Underhill LJ said: "It is all too easy for an employer to allow its view of a whistle-blower as a difficult colleague or an awkward personality (as whistle-blowers 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."

There are two further whistleblowing cases in the Court of Appeal this month: Chesterton Global Ltd and another v Nurmohamed on the meaning of "in the public interest" (8 June) and Royal Mail Group Ltd v Jhuti on whether a dismissal can be automatically unfair if the decision-maker did not know that the employee had made a protected disclosure (28 or 29 June). The decisions in these cases may further clarify whistleblowing law, although we will probably have to wait several months for them to be issued.