Dr Beatt was employed by Croydon University Hospital NHS Trust as a consultant cardiologist. The working relationships between the doctor and several of his colleagues were strained, and the cardiology department had been described as dysfunctional.
Whilst he was performing an operation, his head nurse, Sister Jones, was suspended and the patient died. The Claimant argued that the head nurse’s absence contributed to the patient’s death. Dr Beatt held her in high regard and it was thought that this influenced his objectivity.
He raised concerns over a lack of medical support, specifically about staffing levels and patient safety in general. The hospital decided the allegations were “entirely without merit and … gratuitous in nature”, and motivated both by his antagonism to the department’s assistant director and his wish to see Sister Jones reinstated. He was duly dismissed for gross misconduct, on the grounds that he had made false accusations of poor patient safety and unfounded accusations against a colleague.
He won his claim of automatic unfair dismissal for making protected disclosures (whistle-blowing) at the Employment Tribunal.
The case went to the Court of Appeal which found in his favour. There was no dispute that the Claimant had made protected disclosures – the only question for the court was whether the Tribunal was right or in any event entitled, to find that that was the principal reason why he was dismissed. It was irrelevant if the Hospital thought they were not protected disclosures, or ones made not in good faith. Deciding if a disclosure is protected is an objective assessment for the employment tribunal as to whether the statutory conditions for protection are met. The Court found that in whistleblowing cases, there were two questions:
- Is the making of the disclosure the reason for the dismissal?
- Is the disclosure in question protected within the meaning set out in the Employment Rights Act (ERA)?
The Court commented that it would enormously reduce the scope of the protection for whistle blowers if liability could only arise where the employer itself believed that the disclosures were protected.
Peter Stanway, our BackupHR™ legal expert comments:
Dismissing a whistle blower is always going to be a high risk strategy, so this Judgment is unsurprising as, for policy reasons, a high level of protection is granted to whistle-blowers. As Underhill LJ said: “It is all too easy for an employer to allow its view of a whistle blower as a difficult colleague or an awkward personality (as whistle blowers sometimes are) to cloud its judgement.”
The Judge, who has a strong background in employment law, went on to say “if there is a moral from this sad story” it’s that employers should proceed to the dismissal of a whistle blower only where they are as confident, as they reasonably can be, that the disclosures in question are not protected or, that a distinction can clearly be made between the fact of the disclosures, and the manner in which they are made.
Action Points for Employers:
- Be careful to consider whether any disclosures are protected or not. A disclosure will be protected if it meets the statutory conditions and this is an objective test rather than a subjective one. Try to be dispassionate.
- You should not allow your view of a whistle blower as a difficult colleague or an awkward personality to cloud your judgment about whether the disclosures in question do in fact have a reasonable basis. This will be judged by the tribunal.
- You should therefore only dismiss if you are confident that the disclosures in question are not protected, or where a distinction can clearly be made between the disclosures themselves, and the manner in which they are made.
The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.
