Picture the scene…an employee raises legitimate complaints which constitute protected disclosures for the purposes of the relevant legislation. In accordance with its obligations, the employer investigates the complaints, but the complainant is not happy with the outcome, and so complains some more. Grievance upon grievance is raised and things mushroom out of all proportion. The employee becomes unmanageable (and/or is perceived as such). The lines become blurred between the fact that the employee has made the complaints and the manner in which he makes them – what is an employer to do?
The recent EAT decision of Panayiotou v Kerhaghan and the Police and Crime Commissioner for Hampshire provides some comfort to employers that action can be taken against such employees: provided that the reason for the action taken can be distinguished from the fact that they have made the complaint.
The facts in the case are fairly complicated, but by way of brief background: Mr Panayiotou was employed by Hampshire police as a police officer. He initially raised protected disclosures relating to concerns he had about his fellow officers' attitude in respect of certain race issues and the treatment of the victims of certain crimes. The matters were investigated and his concerns were found to be largely substantiated. However, Mr Panayiotou was not happy with the action taken and he began to "campaign for the force to take the actions that he believed appropriate". His actions took up a great deal of management time and he ultimately became unmanageable and was dismissed.
The employer was heavily criticised in the case and ultimately the Tribunal concluded that Mr Panayiotou had not been treated fairly. In particular, the police force refused to consider applications from Mr Panayiotou to be involved in his wife's business. He was arrested in 2006 and accused of receiving sick pay whilst working without authorisation. Finally, he was subject to a surveillance operation (carried out by officers against whom he had previously made complaints) to determine whether he had in fact been working in his wife's business. This operation concluded that Mr Panayiotou had been carrying on a business. Mr Panayiotou was dismissed under regulation 7 of the Police Regulations 2003 on the basis that he had an incompatible business interest. Under this process, whilst the Police Authority had to allow the officer to make representations in his defence, there was no ability to appeal the recommendation to dismiss (as would be the case in a dismissal for misconduct). The Tribunal concluded that the manner of his dismissal was a 'device', intended to avoid any outside challenge.
However, in this case, the Tribunal did not have to consider a claim for unfair dismissal (as police officers do not have a statutory right to be unfairly dismissed). It did consider whether the reason why Mr Panayiotou was subject to detriments was connected to the fact that he had made protected disclosures. The Tribunal concluded that it was the actions taken by the Claimant after the disclosures which were the reasons why the police force was hostile to him: noting that "the actions of the claimant were sufficient to try and to exhaust the patience of any organisation". Whilst the Tribunal concluded that the Claimant was not dismissed fairly, this was not connected to the disclosures that he had made – rather, it was as a result of the "manner" in which he had pursued them.
Mr Panayiotou appealed, arguing that the Tribunal had made an error of law in finding that his claims failed because the "fact of a disclosure is overtaken by the campaign of the disclosure". He argued that it was not permissible in principle for a Tribunal to draw a distinction between the fact of making protected disclosures and the reaction of the employer to the disclosures. The EAT did not accept this argument. In its view, s.47B of the Employment Rights Act 1996 does not prohibit the drawing of a distinction between the making of protected disclosures and the manner or way in which an employee goes about the process of dealing with protected disclosures (echoing the view of the Court of Appeal in Bolton School v Evans).
The Tribunal had considered whether the making of the protected disclosures was the reason for the employer's actions and concluded that it was not. It was satisfied that the reasons for the action of the Respondents were the combination of the period of time the Claimant had been absent from work, in addition to the way in which he pursued his complaints and the fact that he had become unmanageable. The EAT held that there was no error of law and dismissed the appeal.
In situations which involve cases of repeated complaints such as this, it can often be difficult to see the wood from the trees. However, the making of a protected disclosure does not provide an employee with carte blanche to behave as they please. In some cases employees may take on a personal crusade in the quest for justice as they see it. Whilst all legitimate complaints should be addressed appropriately, if an employee does become unmanageable as a result, disciplinary action could be an option (provided the reason for this is not the making of the disclosure itself). It is still, however, a bold and potentially risky step to take. Employers considering it need to take a deep breath, ensure they are very, very clear on the facts, the timeline and sequence of events, and that the decision is assessed by those ideally entirely uninvolved in both the investigation of the initial complaints, and the subsequent management of the individual concerned.