Whistleblowing and disciplinary proceedings – a reminder to tread carefully
Generally speaking in the employment context, whistleblowing is when a worker or employee discloses information about some danger, fraud, or other illegal or unethical conduct in the workplace. If a worker or employee “blows the whistle” (and certain criteria are met) they are legally protected from being subjected to a detriment or dismissed as a result.
The recent Court of Appeal case of Beatt v Croydon Health Services NHS Trust is a useful reminder about the importance of treading carefully in situations that potentially involve whistleblowing.
Although the term “whistleblowing” is commonly used in practice, the relevant law is centred around the concept of a “protected disclosure”. To be protected by law, a disclosure has to meet various criteria, including:
- the worker or employee making it must have a reasonable belief that it tends to show one or more of six specified types of malpractice;
- the worker or employee making it must also have a reasonable belief that it is in the public interest; and
- it must be made to certain specified categories of people (one being the individual’s employer).
Facts of the case
Dr Beatt was a consultant cardiologist employed by the Trust. Following the death of one of the Trust’s patients, Dr Beatt raised various concerns about staffing and safety.
The Trust concluded that Dr Beatt’s concerns were without merit, and suspected that they had been partly motivated in order to hamper the unit’s ability to run safely and effectively. It raised disciplinary proceedings against Dr Beatt, leading to him being dismissed for gross misconduct.
Dr Beatt raised employment tribunal proceedings, which included a claim for automatic unfair dismissal on grounds of making a protected disclosure. The tribunal upheld the claim, finding that Dr Beatt had made a protected disclosure, and this was the principal reason for the Trust dismissing him.
The case was subsequently appealed, firstly to the Employment Appeal Tribunal and then to the Court of Appeal. During the appeal process, the Trust argued that (at the time of dismissing him) it had not believed that Dr Beatt had made a protected disclosure. On this basis, the Trust contended that it could not be said that the principal reason for Dr Beatt’s dismissal was that he had made a protected disclosure.
The Court of Appeal disagreed with the Trust, and upheld the employment tribunal’s finding of automatic unfair dismissal. It found that in considering a claim of this kind, there were two key questions:
- Whether the making of the disclosure was the principal reason for dismissal (and, in relation to this question, the employer’s belief at the time of dismissal was relevant); and
- If so, whether the disclosure amounted to a protected disclosure (and, in relation to this question, the employer’s belief at the time of dismissal was irrelevant).
A useful warning
This case is a useful warning to employers about the need to tread carefully in situations that potentially involve whistleblowing. It shows that even if the employer does not believe that a disclosure constitutes a protected disclosure, it may still be possible for the worker or employee to successfully make a whistleblowing claim. Brodies’ Employment team can work with you to identify any risks (and how to address them) in situations of this kind.
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