Does it make a difference to a whistleblowing claim if the employer does not believe the disclosure made by the employee was protected? As shown in the recent case of Beatt v Croydon Health Services NHS Trust, the Court of Appeal holds that an employer defending a protected disclosure automatic unfair dismissal claim cannot rely on an argument that they did not believe the disclosures to amount to qualifying protected disclosures.
Dr Beatt was a heart surgeon involved in an operation that resulted in the death of a patient. While the operation was ongoing, the head nurse was suspended for unrelated allegations. Dr Beatt believed the nurse’s absence contributed to the patient’s death, as she was not then available to assist with the provision of, for example, equipment.
In the subsequent days and weeks, he made various disclosures relating to this and general staffing issues that he said impacted on patient safety.
Disclosures and public interest
The trust proceeded to dismiss him, not shirking from the fact that they were dismissing him because of these disclosures; the dismissal letter stated “you made various unsubstantiated and unproven allegations of an unsafe service.” For most of the relevant period, it was necessary for a disclosure to be made ‘in good faith’ for it to be protected; that requirement no longer applies but has been replaced by a requirement that a disclosure is (in the reasonable belief of the worker) “made in the public interest.”
The trust found that the disclosures were “part of a campaign to have [the nurse] reinstated after her suspension, rather than out of a genuine concern for patient safety.” Hence, they claimed, the disclosures were not made in good faith.
The Employment Tribunal concluded that the disclosures were protected and that the principal reason for dismissal was the making of those protected disclosures. Accordingly, Dr Beatt’s dismissal was automatically unfair. This finding was overturned by the Employment Appeal Tribunal and the case proceeded to the Court of Appeal.
Questions in whistleblowing dismissal cases
The court found that there are two considerations in such a claim: “It is necessary to distinguish between the questions (a) whether the making of the disclosure was the reason (or principal reason) for the dismissal; and (b) whether the disclosure in question was a protected disclosure.” When answering the second question, it is the tribunal’s objective assessment only that is relevant. To find otherwise would “enormously reduce the scope of the protection”; an employer may well entirely genuinely believe that a disclosure was not protected on the basis that e.g. there was no reasonable belief in the relevant failure.
This case was unusual in that the employer accepted that it dismissed Dr Beatt for the alleged protected disclosures.
Usually, the employee will be arguing that some unconnected reason was not the true reason for dismissal. In circumstances where an employee has blown the whistle, this case serves to illustrate the value of taking legal advice on whether liabilities might arise from dismissing an employee or subjecting them to some other detriment, particularly given that these rights have no length of service requirement.
For more information about any of the issues raised in this article or on employment law in general, contact our Leeds Employment team.