Beatt v Croydon Health Services NHS Trust [2017] EWCA Civ 401

Why care?

It is unlawful to victimise or dismiss workers who have reported wrongdoing to their employer (or in certain cases, to third parties) by way of reprisal.

In order to be protected, workers must have made a qualifying disclosure, which among other requirements must contain information relating to a relevant failure (which includes breaches of any legal obligation or danger to the health and safety of any individual), and must be in the public interest if made after 25 June 2013. The worker must also have a reasonable belief that the information tends to show a relevant failure. In order to be a protected qualifying disclosure, the disclosure must have been to the employer or certain third parties (such as the Financial Conduct Authority, where appropriate), but only in very limited cases to the police or media.

In this case, the Court of Appeal had to decide whether, when deciding to dismiss an employee who claimed to be a whistle blower, it was relevant that the employer did not believe the disclosures made to have been protected. It concluded that it was not.

The case

The Claimant was a consultant in the Respondent’s cardiology department. It was not a happy place to work, and he had difficult working relationships with some of his colleagues. On 9 June 2011, a nursing sister was called to a meeting concerning allegations that she had been rude and abusive to colleagues. The Claimant attended the meeting with her, but during a break in the meeting was called to take over a surgical procedure. The meeting continued in his absence, and the sister was suspended. Meanwhile, complications developed in the Claimant’s procedure, and the patient died.

The Claimant believed that the sister’s suspension had contributed to the patient’s death, as had she been available she would have been able to provide the appropriate necessary equipment quickly. He made a number of claims which he considered to be protected disclosures relating to staffing levels, staff experience, and patient safety.

The Respondent considered his claims to be unsubstantiated and unproven, and said he had not provided any examples to back up his claims. The Respondent believed that some of his claims were part of a campaign against colleagues, were vexatious and intended to hamper the running of the department. He was dismissed for gross misconduct.

The Claimant claimed he was a whistle blower and had been automatically unfairly dismissed. The Employment Tribunal agreed, saying that he had made a number of protected disclosures and this had been the principal reason for his dismissal.

The Employment Appeals Tribunal disagreed, saying the tribunal had not begun by identifying the facts known to the Respondent, and the beliefs it held that led to the dismissal. Instead, it had carried out its own assessment of the misconduct charges against him. It had found that the protected disclosures were the real reason for the dismissal without explaining why it did not believe the Respondent’s evidence that he had been fired for misconduct.

The Court of Appeal unanimously restored the Employment Tribunal’s finding.

There are two questions that a tribunal must consider when deciding if a claimant has been automatically unfairly dismissed for whistleblowing:

  1. Was the making of the disclosure the reason (or where there is more than one, the principal reason) for the dismissal?The tribunal must consider what were the facts or beliefs that caused the decision-maker to dismiss the individual.
  2. Is the disclosure in question a protected disclosure?

This is an objective test, and the beliefs of the decision-maker are irrelevant.

The Court of Appeal commented that, if the Respondent’s argument that the tribunal should consider whether the employer had believed the individual to be a whistle blower was correct, this would reduce substantially the scope of whistleblowing protection: it would mean that it applied only where the employer believed that it was dismissing an employee for protected disclosures. Underhill LJ remarked that in many or most cases, an employer will not consider at all whether a disclosure is protected.

What to take away

It is possible to distinguish between the fact of a disclosure and the manner in which it is made – for example, to dismiss someone for hacking into IT systems to demonstrate the lack of security.

However, dismissing someone who has made disclosures which may be protected is a high-risk strategy. In the Court of Appeal’s decision, Underhill LJ says that, “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 judgment 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.”

For policy reasons, whistle blowers enjoy a high level of protection. Employers should proceed to dismiss only where:

  • The reason for the dismissal is clearly distinct from the making of the protected disclosures,
  • The employer is as reasonably sure as it can be that the disclosures are not protected, or
  • Where the disclosures are protected, a distinction can be drawn between the fact of the disclosures and the manner in which they were made.