Automatically Unfair Dismissal


Good afternoon, today’s case is quite an interesting case concerning whistleblowing, bullying and the fine line between fair dismissal and automatic unfair dismissal. There is no question as such today but that doesn’t mean there aren’t interesting points that can be taken away.

Mr Wyeth, the Claimant, worked for Salisbury NHS Foundation Trust, the Respondent, as a nursing assistant. The Claimant worked nightshifts, part of the night shift team included an Operating Department Practitioner (ODP) who assisted the anaesthetist and whom operations could not be performed without.

The Claimant raised concerns to his manager about the ODP on his team who he believed was misusing anaesthetic drugs. The Claimant had found the ODP asleep numerous times and he was very difficult to rouse. He also reported seeing the ODP inhaling a substance from a bottle. The Claimant was friends with the ODP but reported out of concern for public safety.

The manager spoke to the ODP about the allegations, the ODP denied and the matter was taken no further as the ODP had no previous record of poor conduct. The Claimant and other members of staff reported the ODP again the following year following similar incidents, these were classed as protected disclosures. This time the Claimant’s manager also witnessed the ODP’s behaviour and disciplinary procedures ensued.

The ODP was a popular member of staff and a colleague began a counter investigation to prove the ODP’s innocence. This colleague then became aggressive towards the Claimant and upon reporting this to his manager the Claimant was moved to the day shift in order to avoid confrontation. The Claimant felt humiliated and then went off sick with depression.

The disciplinary investigation into the ODP’s conduct took place whilst the Claimant was off work and the Claimant was not interviewed. The manager concluded that whilst the ODP had fallen asleep at work there was no evidence to support allegations of drug misuse. The Claimant received this outcome via letter which also warned staff not to gossip about the ODP upon his return to work.

When the Claimant himself returned to work he was again only allowed to work day shift and discovered that staff were openly talking about the events surrounding the ODP’s suspension. The Claimant felt he had been made out to be a liar and promptly resigned and bought a constructive dismissal claim against the Respondent.

The ET allowed the claim citing the fact that had the Claimant not made the protected disclosure he would not have been moved to the dayshift, bullied or gossiped about. It further noted how despite other employees also making protected disclosures the Claimant was the only one who was threatened by the ODP’s colleague and also should have been interviewed in disciplinary process.

The Respondent appealed the decision rejecting the ETs judgment that the protected disclosure was not only the cause of events but also the reason for the dismissal (the ‘but for’ test). Or, alternatively that the ET had failed to identify a reason for dismissal. The EAT dismissed the ‘but for’ appeal but allowed the rest of the appeal stating that the dismissal was unfair but not automatically unfair.

The takeaway point is:

An employee who is found to be (constructively) dismissed after making protected disclosures can be unfairly dismissed but not always automatically. The importance of this is that despite the Claimant making a disclosure the dismissal could be deemed as unrelated to the dismissal and therefore not automatically unfair.

Furthermore automatic unfair dismissals have no cap on awards meaning that the Respondent could have potentially saved themselves from a large compensation payout.

To read more whistleblowing cases click here.