Labour & European Law Review Weekly Issue 371 28 May 2014
Employees who make protected disclosures (blow the whistle) are protected under the Employment Rights Act in certain circumstances. However, the Employment Appeal Tribunal (EAT) said in Panayiotou v Chief Constable Paul Kernaghan that, when deciding why someone was dismissed, tribunals can distinguish between the protected disclosures and the way that the employee behaved subsequently.
After transferring to the Hampshire police force in 2000, Mr Panayiotou made protected disclosures to senior officers about the way that other officers were treating people on the basis of their race as well as victims of rape, child abuse and domestic violence.
Although Mr Panayiotou’s concerns were mainly upheld, he was not happy with how they were followed up and started campaigning for more action to be taken. When he failed to generate any support for his campaign, he decided that officers were being bought off as part of a general cover up so that they would not help him.
His superiors then made a number of allegations about his involvement in his wife’s various business interests, for instance that he was receiving sick pay whilst working for her. They authorised two officers (about whom Mr Panayiotou had made complaints in about 2006) to carry out surveillance on him.
He was finally dismissed in 2008 on the basis that he had a business interest that was incompatible with his work as a police officer under regulation 7 of the Police Regulations 2003, which meant that he had no right of appeal. Mr Panayiotou claimed that he had been subjected to various detriments and unfairly dismissed because he was a whistleblower.
The tribunal expressed its concern about the way that Mr Panayiotou had been treated in general. It was also concerned that his dismissal under regulation 7 was a “device” to terminate his employment in a way that could not be challenged.
But although the disclosures constituted the “genesis” for his treatment, the tribunal held that he was dismissed as a result of the course of action he took afterwards. It was clear that by the time of his dismissal, he was taking up a huge amount of management time and was unable to function in his capacity as a policy officer.
So although the force dismissed him in a way that was not fair, it was not in any sense connected with the public interest disclosures he had made.
And the EAT agreed. It rejected Mr Panayiotou’s argument that the tribunal had ruled that there must come a time when protected disclosures were not protected anymore.
Instead it had distinguished between the protected disclosures he had made and the way in which he dealt with things when his employer did not respond in the way that he considered appropriate. In effect, Mr Panayiotou was dismissed because he had "become completely unmanageable”, not because he had blown the whistle.