Blowing the Whistle: Was the Disclosure a Protected One?
6th June, 2017
Is an employer’s belief relevant when deciding whether or not an employee’s disclosure was protected? The Court of Appeal in the recent case of Beatt v Croyden Health Services NHS Trust  EWCA Civ 401 ruled that it is not.
For a disclosure to be protected it must be a qualifying one. This means that the disclosure must, in the reasonable belief of the worker, be made in the public interest and tend to show one or more of the following:
a) that a criminal offence has been committed, is being committed or is likely to be committed;
b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject;
c) that a miscarriage of justice has occurred, is occurring or is likely to occur;
d) that the health or safety of any individual has been, is being or is likely to be endangered;
e) that the environment has been, is being or is likely to be damaged; or
f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.
In addition, the disclosure must be made to one of the categories of people listed in sections 43C to 43H of the Employment Rights Act 1996 including:
a) disclosure to the employer or other responsible person;
b) disclosure to a legal adviser;
c) disclosure to a Minister of the Crown; and
d) disclosure to a prescribed person.
Prior to 25 June 2013 a disclosure to an employer had to be made in good faith in order to be protected. Therefore, Mr Beatt’s disclosure referred to below would need to be in good faith. However, from 25 June 2013 the employee must have reasonable belief that their disclosure was made in the public interest.
In this case Mr Beatt specialised in interventional cardiology. In 2011 the head nurse, Sister Lucy Jones, was suspended. Mr Beatt had attended Sister Jones’ meeting that day but was called to the lab to take over a procedure. In his absence Sister Jones was suspended. In the meantime, during the procedure, complications had arisen and Mr Beatt’s patient, GS, died. It was Mr Beatt’s view that it was irresponsible of the Trust to suspend Sister Jones in the middle of the day when she may have had clinical responsibilities and further to this, Sister Jones’ absence played a part in GS’s death.
Subsequent to these events Mr Beatt made a number of disclosures including contacting the CEO of the Trust claiming that he had concerns about the timing of the suspension of Sister Jones, the effect of her suspension in terms of GS’s death and patient safety.
Mr Beatt was subsequently dismissed as the Trust claimed that his allegations were gratuitous and without merit and that they stemmed from his antagonism towards the department’s assistant director and his wish for Sister Jones to be reinstated. Mr Beatt claimed that he had been unfairly dismissed pursuant to Section 103A of the Employment Rights Act 1996 because the sole or principal reason for his dismissal was because he had made a protected disclosure. The Trust’s view was that the disclosures were not protected.
The Court of Appeal agreed with the decision of the ET that the disclosures were protected and therefore, Mr Beatt was automatically unfairly dismissed, stating that if the protection afforded by Section 103A could only arise when the employer itself believed that the disclosures were protected, it would enormously reduce the scope of the protection.
It went on to state that:
“…it is all too easy for an employer to allow its view of a whistleblower as a difficult colleague or an awkward personality (as whistleblowers sometimes are) to cloud its judgement about whether the disclosures in question do in fact have a reasonable basis or are made (under the old law) in good faith or (under the new law) in the public interest. Those questions will ultimately be judged by a tribunal, and if the employer proceeds to dismiss it takes the risk that the tribunal will take a different view about them.”
Although the decision made is understandable, in future employers could still seek to argue that a disclosure is not protected on the basis that the employee does not have reasonable belief that their disclosure tends to show one of the six categories referred to above, or that their disclosure is made in the public interest.
However, dismissing an individual who has made such a disclosure is always likely to be a high risk strategy and if you need advice regarding whistleblowing or dismissal of an employee then contact our Employment Department for specialist advice.