Defence of unfair dismissal claims because of whistle-blowing

Is an employer’s belief that the whistle-blowing disclosure was not legally protected relevant?

Written by Brabners LLP

An employee successfully claiming unfair dismissal because of a “protected disclosure” (more commonly known as whistle-blowing) can benefit from the following:

  • The usual qualifying period for unfair dismissal claims of 2 years will not apply;
  • The dismissal will be treated as automatically unfair; and
  • There is no limit on the amount of compensation that can be awarded.

The employee however must establish that the reason, or the principal reason for their dismissal was because of the protected disclosure. A protected disclosure will only be made out if certain conditions are met under the Employment Rights Act 1996 (ERA).

The recent case of Beatt v Croydon Health Services NHS Trust examined the issue of whether an employer’s belief that the disclosure was not legally protected under the ERA is relevant to defending this type of claim.

Background Facts

An NHS Trust (‘‘Trust’’) employed Dr Beatt as a consultant cardiologist for seven years. In June 2011 a patient tragically died. Dr Beatt subsequently made a number of criticisms of the Trust relating to staffing levels, staff experience, and patient safety. The Trust considered that the assertions made were vexatious and subsequently instigated disciplinary proceedings. The Trust then dismissed Dr Beatt on the grounds of gross misconduct. Dr Beatt challenged his dismissal with the case eventually making its way all the way up to the Court of Appeal.

Decision

The Court of Appeal was asked to consider whether the employment tribunal at first instance had correctly decided that the reason that the Trust had dismissed Dr Beatt was that he had made protected disclosures in relation to the criticisms of the Trust. The Trust argued, amongst other things, that an employer who did not believe that the employee had made a protected disclosure could not be held to have dismissed the employee for such a disclosure. The Court of Appeal rejected this argument, and in doing so identified two key questions:

  • Whether the making of the disclosure was the reason for the dismissal; and
  • Whether the disclosure in question was a protected disclosure within the statutory definitions of the ERA?

The first question requires a fact finding exercise into what caused the employer to decide to dismiss the employee. In contrast, the Court of Appeal considered that the beliefs of the employer are irrelevant to the second question, because that is an objective test to be determined by reference to the statutory conditions in the ERA. The court based its decision on policy grounds and confirmed that the Trust’s argument (if successful) would enormously reduce the scope of protection afforded by the whistle-blowing provisions if liability only arose where the employer itself believed that the disclosures were protected.

Conclusion

This case highlights the risk for employers who dismiss an employee because of disclosures made that they believe at the time are not protected or founded, but then are later confirmed as being protected disclosures under the ERA. This means that employers will now need to consider carefully whether to proceed with disciplinary sanctions linked to whistle-blowing allegations made by employees.

Disclaimer: This bulletin is for general guidance purposes only and should not be used for any other purpose. This article is written by Brabners and reproduced with their permission. Brabners is a Limited Liability Partnership.