The recent Court of Appeal case of Dr Beatt v Croydon Health Services NHS Trust has found that, in a whistleblower dismissal case, the question of whether a disclosure is protected is an objective one.
Dr Beatt, a consultant cardiologist, was employed by Croydon University Hospital NHS Trust (“the Trust”) for seven years. During this time he worked on a specialist unit as part of a small team, who were described as dysfunctional and did not work well together.
After the death of a patient during a routine procedure in June 2011, Dr Beatt expressed concerns to the Trust about inadequate staffing in the unit, a lack of experienced nurses and therefore patient safety. The Trust thought that these assertions were unproven, motivated instead by Dr Beatt’s ill-feeling towards certain colleagues. The Trust subsequently bought disciplinary proceedings against Dr Beatt, which culminated in his dismissal for gross misconduct.
Dr Beatt succeeded in bringing a claim against the Trust for automatic unfair dismissal. The Tribunal found that he had made several protected disclosures and that these were the principal reasons for his dismissal. The Trust appealed this decision to the Employment Appeal Tribunal, who questioned the Tribunal’s findings that the protected disclosure had been the reason for dismissal as opposed to Dr Beatt’s conduct. The case was therefore sent to the Court of Appeal.
The Trust argued that, because they did not believe Dr Beatt had made protected disclosures, the reason for his dismissal could not have been because he made protected disclosures.
The Court of Appeal disagreed, setting out the two questions that must be answered in a case of automatic unfair dismissal for whistleblowing and the distinction between them:
- Was the disclosure the reason or principal reason for the dismissal?
- Was the disclosure a protected disclosure?
Whilst the first question is subjective and takes into account the facts and beliefs of the employer, the second question is an objective one. The decision as to whether a disclosure is a protected disclosure is one for the Tribunal to decide and not the employer, making the employer's beliefs irrelevant, genuinely held or not.
This interpretation given by the Court of Appeal upholds and reinforces the significant protection afforded to whistleblowers. It is therefore essential that employer’s carefully consider the above tests before deciding to dismiss an employee who may have made protected disclosures.
As Underhill LJ commented, “employers should proceed to dismissal of a whistleblower only where they are as confident as they reasonably can be that the disclosures in question are not protected.”