In Beatt v Croydon Health Services NHS Trust, the Court of Appeal has held that an employee's dismissal because he made protected disclosures was automatically unfair. The decision makes clear that an employer's belief at the time of the dismissal that the disclosures are not protected is not a relevant consideration for the tribunal.

Dr Beatt was a consultant cardiologist working at Croydon University Hospital. Working relationships within the cardiology department were described as "dysfunctional". Following the death of a patient in 2011, Dr Beatt made a number of disclosures to his employer about patient safety, understaffing and staff inexperience. The NHS Trust began disciplinary proceedings against Dr Beatt, alleging that some of his disclosures were part of his campaign against a colleague and that his complaints were designed to obstruct the safe and effective running of the department. Dr Beatt was dismissed for gross misconduct.

An employment tribunal found that Dr Beatt had made protected disclosures; that the principal reason for the dismissal was the fact that he had made these disclosures; and it concluded that he had been automatically unfairly dismissed. It should be noted that some of Dr Beatt's disclosures were made before the change in the whistleblowing legislation. Before 25 June 2013, there was a requirement for a disclosure to be made in good faith for it to qualify for protection. Since that date, a disclosure will be protected if the employee reasonably believes it is made in the public interest and that the information provided tends to show one of six failings set out in the legislation. There is no longer any requirement for the disclosure to be made in good faith.

The employer appealed on the ground that the reason for the dismissal was conduct rather than the disclosures. The EAT allowed the appeal.

In Beatt v Croydon Health Services NHS Trust, the Court of Appeal has held that an employee's dismissal because he made protected disclosures was automatically unfair. The decision makes clear that an employer's belief at the time of the dismissal that the disclosures are not protected is not a relevant consideration for the tribunal.

Dr Beatt was a consultant cardiologist working at Croydon University Hospital. Working relationships within the cardiology department were described as "dysfunctional". Following the death of a patient in 2011, Dr Beatt made a number of disclosures to his employer about patient safety, understaffing and staff inexperience. The NHS Trust began disciplinary proceedings against Dr Beatt, alleging that some of his disclosures were part of his campaign against a colleague and that his complaints were designed to obstruct the safe and effective running of the department. Dr Beatt was dismissed for gross misconduct.

An employment tribunal found that Dr Beatt had made protected disclosures; that the principal reason for the dismissal was the fact that he had made these disclosures; and it concluded that he had been automatically unfairly dismissed. It should be noted that some of Dr Beatt's disclosures were made before the change in the whistleblowing legislation. Before 25 June 2013, there was a requirement for a disclosure to be made in good faith for it to qualify for protection. Since that date, a disclosure will be protected if the employee reasonably believes it is made in the public interest and that the information provided tends to show one of six failings set out in the legislation. There is no longer any requirement for the disclosure to be made in good faith.

The employer appealed on the ground that the reason for the dismissal was conduct rather than the disclosures. The EAT allowed the appeal.

The Court of Appeal, however, did not agree with the EAT and restored the judgment of the employment tribunal. It made clear that a tribunal should seek to answer two questions in such a case: was the making of the disclosure the reason, or principal reason, for the dismissal; and was the disclosure a protected disclosure?

When considering whether the disclosure was the reason for the dismissal, the tribunal must identify the set of facts known to the employer and/or the beliefs held by the employer which cause the employer to dismiss. It is not relevant to this consideration that the employer believed that the disclosures would not qualify as protected disclosures under the whistleblowing legislation.

When considering whether the disclosure is protected, the tribunal will consider whether the employee reasonably believed that the disclosure was made in the public interest and that the information tended to show one of the six specified failings, for example, that someone's health and safety is or is likely to be endangered. In this consideration, the reasonable beliefs of the employee are relevant, whereas the beliefs of the employer are not.

The Court of Appeal judgment provides a salutary warning that employers should not assume that a tribunal will share their view that an employee is "difficult". Although there may be some cases in which an employee is dismissed because of the manner in which disclosures are made, rather than because of the act of making the disclosures, LJ Underhill commented that: "employers should proceed to the dismissal of a whistleblower only where they are as confident as they can reasonably be that the disclosures in question are not protected".