Employer’s Belief that Whistleblowing Disclosure Not Protected is Irrelevant

In a whistleblowing unfair dismissal case, the fact that the employer believed that the employee’s disclosure was not protected is irrelevant. 

Speedread 

In a whistleblowing unfair dismissal case, the fact that the employer believed that the employee’s disclosure was not protected is irrelevant. If the employer dismisses the employee for making a disclosure which the tribunal finds was protected, the dismissal will be automatically unfair. 

Facts 

In Beatt v Croydon Health Services NHS Trust, Mr Beatt, a consultant cardiologist, made a number of claims relating to staffing levels, experience of staff and patient safety. The Trust investigated his concerns under its “Speak Up Policy” and concluded that his claims were entirely without merit. A disciplinary investigation ensued and a number of charges were upheld following a disciplinary hearing. These included that he had made unsubstantiated and unproven allegations of an unsafe service and of unsafe staffing levels. The Trust concluded that his claims were made as part of a campaign against a colleague, were vexatious and were calculated to hamper the safe and effective running of the department. It dismissed him for gross misconduct. 

Mr Beatt claimed that his dismissal was automatically unfair on whistleblowing grounds. The Trust argued that his disclosures were not protected as he did not reasonably believe that a person’s health and safety was being or was likely to be endangered. The employment tribunal upheld his claim, ruling that he had made a number of protected disclosures and this was the principal reason for his dismissal. Mr Beatt appealed. 

Decision

When the case reached the Court of Appeal, the Trust argued that a tribunal can only uphold a claim of whistleblowing automatic unfair dismissal if it concludes that the employer believed that the employee had made a protected disclosure. If the employer did not believe that the employee had done so, its reason for dismissing the employee could not be that he had made a protected disclosure. The Court of Appeal disagreed. 

In a whistleblowing unfair dismissal claim the tribunal needs to consider two questions:

• Whether the making of the disclosure was the reason (or principal reason) for the dismissal;
• Whether the disclosure in question was a protected disclosure within the meaning of the legislation.

Whilst the first question requires an inquiry into what facts or beliefs caused the decision-maker to decide to dismiss, the beliefs of the decision-maker are irrelevant to the second question.   

The Court of Appeal therefore upheld the tribunal’s decision. 

Implications

Employers cannot defend a claim of whistleblowing automatic unfair dismissal by arguing that they did not believe that the disclosure made by the employee qualified for protection. If the tribunal finds that the employee’s disclosure was a protected disclosure, the employer’s belief is irrelevant. The only question then is whether the employer’s reason (or principal reason) for dismissing the employee was that they made the disclosure. 

The Court of Appeal based its decision on policy grounds, as upholding the Trust’s argument would significantly reduce the scope of the protection afforded, particularly as employers will often not consider whether a disclosure is protected.