Disclosure Leads to Dismissal

Welcome back to your weekly update. We can’t bring you another bank holiday weekend (yet!) but we can deliver an interesting case on whistleblowing.

It is worth noting at this point that the Employment Rights Act 1996 (s103A) protects an employee from being dismissed for making a protected disclosure.

The facts of the case:

The Claimant Mr Beatt was a consultant cardiologist employed by the trust at Croydon University hospital from September 2005. His speciality was interventional cardiology.In 2008 two new consultants were appointed.The new team did not work well together. A review by the Royal College of Physicians in 2009 described the cardiology department as “dysfunctional”.

In June 2011 the claimant was involved in an invasive procedure which led to the patient’s death. During the course of this procedure his most trusted nurse Sister Jones was suspended. The Claimant felt that the suspension of Sister Jones in the middle of the working day was irresponsible and it was his belief that her absence from the theatre that day contributed to the patient’s death.

The Claimant made various disclosures. He raised various concerns over staff levels and patient safety in general together with concerns related to this incident.

A report completed by the Respondent concluded that the allegations were “entirely without merit and … gratuitous in nature” motivated by the Claimant’s antagonism to the department’s assistant director.

The Claimant was suspended, and subsequently dismissed for gross misconduct. The Claimant claimed automatic unfair dismissal for making protected disclosures.

The employment tribunal found the principal reason for the Claimant’s dismissal was for making protected disclosures. He won his case for Automatically Unfair Dismissal. The Respondent Appealed.

There were several grounds of appeal. The principal point of interest was that it was the hospital’s belief that the disclosures (for which he was dismissed) were not protected because they were made in bad faith and not in the public interest.

The question therefore is:

Does it matter if the employer believes that the disclosures weren’t protected even though the principal reason for dismissal was the disclosures?

The Court of Appeal held that It was irrelevant if the Respondent thought they were not protected disclosures, or ones not made in good faith. The test is an objective one to be determined by the employment tribunal. It was held that it would enormously reduce the scope of the protection afforded by the provisions if liability under section 103A could only arise where the employer itself believed that the disclosures were protected.

The takeaway point:

An employer needs to 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.