Employer’s belief that whistleblower’s disclosure was not protected was irrelevant
Employment law has given protection to ‘whistleblowers’ since 1999. Essentially, a worker or employee reporting the wrongdoing of the organisation that they work for is protected from being treated badly or dismissed as a result.
For the protection to take effect, the disclosure (i.e. the reporting of the wrongdoing) must be a ‘qualifying’ disclosure. In order to qualify, the disclosure must relate to certain activity, such as a criminal offence, a miscarriage of justice, damage to the environment or an attempt to cover any of those activities up.
The disclosure must also be made to certain categories of people, such as someone within the organisation. Most importantly, the individual must have a reasonable belief that the wrongdoing has taken place, and that reporting it is in the public interest (and not just their own).
While there are clearly limits on the protection afforded to whistleblowers, the case of Beatt v Croydon Health Services NHS Trust highlights the risk of employers making assumptions that disclosures made by their employees are not protected.
In this case, Dr Beatt was a surgeon who complained about one of his assistants being suspended during surgery, as he felt that it had contributed to a patient’s death. The Coroner later agreed with him on that point. Dr Beatt also made complaints about other employees, but his employer considered him to have made those complaints out of spite as opposed to concern for patients, and dismissed him as a result.
When dismissing him, the Trust accepted that Dr Beatt had made disclosures, but decided that the disclosures were not protected as they were not proven or in the public interest.
However, the Court of Appeal (CA) concluded that the Trust’s belief that the disclosures were not true or in the public interest was irrelevant, as if it were it would make it too easy for employers to evade the protections given to whistleblowers. Instead, it is for the Employment Tribunal to decide whether a disclosure made by an individual meets the criteria outlined above.
On that basis the CA upheld Dr Beatt’s claim of unfair dismissal.
The CA qualified its decision somewhat by saying that it could be possible for a dismissal to be fair if the reason for it was the manner in which a protected disclosure was made. However, it also said that such a manner would have to be seriously unreasonable for the employer to rely on it as a fair reason for dismissal. The threshold is high on that point and as such would be a risky approach for an employer to take.
This case is a reminder of the extent of whistleblower protections, and that an employer cannot get around them simply because it doesn’t consider the disclosure to meet the test for protection. That is for the Employment Tribunal to decide, and making assumptions in that regard can lead to a successful claim.
If you have any questions on any of the issues raised in the above article please contact Seanpaul McCahill.