Whistleblowing: Employers belief in disclosure is irrelevant
In the recent case of Beatt v Croydon Health Services NHS Trust the Court of Appeal confirmed that it is for an Employment Tribunal to decide whether a disclosure is protected, not the employer.
In this case, the Claimant was a cardiologist working at the Respondent’s hospital. The Claimant had to operate on a patient without the assistance of his most trusted nurse because, at that moment, the nurse was sitting in a disciplinary hearing. The nurse was also put on suspension during the procedure. During the course of the operation, the Claimant requested a tool which he believed the nurse would have been able to find quickly, however the nurses present at the time did not. The Claimant alleged that this caused an unnecessary delay which was a contributing factor in the patient’s unfortunate and eventual death.
Following this incident, the Claimant expressed many views about the Respondent and its actions, including: complaints to senior Trust managers; expressing doubts about the morale of the other nurses; and writing a report to the Coroner referring to the delay during the procedure he undertook. The Claimant’s main complaint was that he felt the hospital was unsafe for patients due to the Respondent’s actions.
The Claimant was then subject to a disciplinary hearing on the grounds that he had made “false allegations of poor patient safety” and “unfounded accusations” against the individuals who had suspended the nurse. The Respondent believed that the allegations made by the Claimant were done so on the basis that he had a difficult working relationship with the other consultants and the allegations were motivated by a desire to have the suspended nurse reinstated. The Claimant was subsequently dismissed for gross misconduct.
The Claimant brought a claim for automatic unfair dismissal on the grounds that he was dismissed for making protected disclosures as a whistleblower. The Court of Appeal agreed.
In supporting the Employment Tribunal’s finding that the Claimant had been unfairly dismissed, the court noted that employers cannot decide whether the allegations are protected disclosures or not, even though the employer held a genuine belief that the Claimant had an ulterior motive. To allow employers the power to decide whether allegations were protected or not would significantly reduce the policy protection afforded to whistleblowers under the Public Interest Disclosure Act 1998.
What does this mean for you or your business?
This case reinforces the significant protection afforded to whistleblowers. Whenever an employee makes an allegation of wrongdoing under whistleblowing legislation, the employer should not consider what the motivation behind the allegation is. Dismissing or causing detriment (such as commencing disciplinary proceedings) is very risky even if the employer genuinely believes the disclosures are being made in bad faith. Although it may still be possible to fairly dismiss (for example because it does not fall into one of the 6 permitted types of disclosure) great care should be taken before doing so. As LJ Underhill stated in this case “if the employer proceeds to dismiss, it takes the risk that the Tribunal will take a different view”.
What do you need to be doing now?
Even if you believe that a whistle blower is simply being difficult when making allegations, it is very difficult to second guess whether an Employment Tribunal will take the same view. Therefore, you should treat disclosures with respect and follow a process, even if you do not believe the disclosure is protected.
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.