Beatt -v- Croydon Health Services NHS Trust [2017] EWCA considered an employer’s belief as to the protected status of a disclosure made by an employee who was subsequently dismissed.

A doctor made several disclosures about patient safety following the death of a patient. Dr Beatt’s employer, Croydon Health Services NHS Trust, argued that the disclosures were vexatious and designed to hamper the effective running of the cardiology department. Disciplinary proceedings ensued, and the employee was dismissed for gross misconduct.

The Court of Appeal decided that as soon as a disclosure met the statutory test in Part IVA of the Employment Rights Act 1996, protection was afforded. It did not matter that the employer believed the disclosure was not protected. The implication of this is that if an employer dismisses an employee because of a disclosure that it believes is not protected, if a Tribunal later finds it is protected, the dismissal may be automatically unfair.

Employers are not prevented from dismissing employees who make disclosures, but advice must be sought due to the risk involved. Before taking such action, an employer must be confident that the disclosure made does not attract the protection of whistleblowing legislation.

Expert advice should be sought in all potential whistleblowing cases, particularly where there is uncertainty about whether protection is afforded under legislation. The protected status of a disclosure may affect the steps an employer is able to take in relation to a concerned employee and the consequences of getting it wrong only highlight the importance of early advice.