It is automatically unfair to dismiss a whistle-blower for making a protected disclosure if they reasonably believe it was “in the public interest”. In Beatt v Croydon Health Services NHS Trust, the Court of Appeal held that once it has been established that the disclosure was the main reason for dismissal, tribunals have to decide objectively whether it was a protected disclosure.
Basic facts
Mr Beatt worked as a specialist cardiologist in what was known as the Cath Lab. He alleged that safety in the lab had been compromised by the suspension of the Head Nurse, contributing to the death of a patient during a procedure which he carried out. He also said that her suspension had impacted more generally on morale among the nursing staff. He expressed those views to Trust managers, the medical director, the coroner and the CEO of the Trust, among others.
The Trust carried out an investigation into his allegations which concluded that they were "entirely without merit and … gratuitous in nature". After refusing to undertake his duties because of concerns about patient safety, Mr Beatt was suspended for making false accusations of poor patient safety and unfounded accusations against a colleague. After a disciplinary hearing, he was dismissed for gross misconduct.
Mr Beatt claimed unfair dismissal contrary to the "whistleblower" provisions of section 103A of the Employment Rights Act 1996 (ERA), among other things.
Tribunal and EAT decisions
The employment tribunal upheld his claim on the basis that the true reason for dismissal was not misconduct but rather the fact that Mr Beatt had raised concerns about patient safety. As the Trust had failed to carry out a fair process, dismissal was not within the band of reasonable responses open to them.
The EAT allowed the Trust’s appeal holding that, instead of determining the facts as they were known to the Trust, the tribunal had embarked on its own assessment of the conduct charges, found them “less than compelling” and then concluded that conduct was not the reason for dismissal but the protected disclosures. In addition, it did not properly analyse the evidence of the chairs of the disciplinary and appeal panels, who clearly believed that conduct was the real reason for dismissal.
Decision of Court of Appeal
The Court of Appeal agreed with Mr Beatt, holding that the Trust had allowed its view of him as a trouble-maker to cloud its judgement as to whether the disclosures he made were “in the public interest”.
It made clear that the ERA requires tribunals to decide first whether making the disclosure was the reason or, if there was more than one, the principal reason for the dismissal; and second whether it was a protected disclosure. When answering the first question consideration must be given to the facts or beliefs that caused the decision-maker to dismiss. However, the beliefs of the decision-maker are not relevant to the second question which instead involves a purely objective determination by a tribunal.
If it had to be shown that the employer believed the disclosure was protected in order to succeed in a claim, the Court pointed out that this would enormously reduce the scope of the protection afforded by the legislation.
It therefore upheld the tribunal’s finding of automatic unfair dismissal.