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Whistleblowing – where next?

Quite frequently I find myself finally getting comfortable with a legal principle, only for it to change and cause my brain to fog up again (no comments from colleagues on that one, please).  I’ve struggled with various elements of the whistleblowing legislation and its interpretation over the years – the requirement (or otherwise) for the disclosure to be made in good faith/in the public interest, whether a complaint about a breach of one’s own employment contract can be a protected disclosure– and it is only relatively recently that things have been clearing up for me again (a sure sign that a further change in judicial approach is on the horizon).  Every so often, though, I read a whistleblowing case report which totally makes sense to me – and since that happened to me this week, I thought I’d share my thoughts on it.

Beatt v Croydon Health Services NHS Trust is in many ways a classic NHS whistleblowing case.  As with many of these cases, it has taken a while to work its way through the courts, and its facts span two different tests for whistleblowing following the change in the law in 2013 (when the requirement for the disclosure to be made ‘in good faith’ fell away).  Mr Beatt was a cardiologist who had difficult relationships with various colleagues.  Following the tragic death of a patient in 2011,  Mr Beatt raised a number of allegations relating to staffing levels and experience, and to patient safety. The hospital trust investigated and found the allegations unfounded, saying Mr Beatt had (allegedly) failed to provide evidence to back up his claims, despite repeated requests to do so.  It found that he was motivated by personal animosity towards colleagues and a desire to undermine the effective running of the department.  The Trust therefore instigated disciplinary proceedings against him which led to his dismissal for gross misconduct.

He brought various claims, including automatic unfair dismissal for whistleblowing, under section 103A of the Employment Rights Act.  The tribunal found that he had made a number of protected disclosures and that was the principal reason for his dismissal.  On appeal, the Trust argued successfully that the tribunal had failed to identify why it did not believe the hospital’s evidence that conduct was the real reason for dismissal.

On appeal to the Court of Appeal, the employment tribunal’s judgment was restored.  The Court set out a helpful summary of the questions to be asked under section 103 A:

• Was the making of the disclosure the reason (or principal reason) for the dismissal?  This requires an enquiry into what caused the decision maker to decide to dismiss (in this case, was it conduct or was it the disclosures?);

• Was the disclosure a protected disclosure within the meaning of the Employment Rights Act?  For these purposes, the beliefs of the decision maker are entirely irrelevant – it is an objective test to be determined by reference to the relevant statutory conditions. The court commented that if protection only arises where the employer itself believes the disclosures are protected, that would inevitably narrow the scope and utility of the whistleblowing provisions. It is notable in this context that the court paid considerable regard to the overall policy rationale, in reaching and shaping its judgment.

In the light of that, I thought it might just be helpful to summarise where the core tests and protections in this area of law now stand:

• Remember that whistleblowing protection applies to workers, not just to employees;

• In order for a disclosure to be protected, it must be a qualifying disclosure as defined in the legislation.  This basically means that the worker must have a reasonable belief that the information they disclose tends to show one or more of six specified types of concern (including criminal offences, miscarriages of justice, damage to the environment – see here for full checklist).  I think it is useful periodically to revisit that checklist – one can get carried away with assuming that disclosures will be protected and reverting back to the statute from time to time is both helpful and sometimes reassuring;

• The disclosure must be made to one of the categories of people listed in the Act, which includes the employer;

• Prior to June 2013, the disclosure had to be made in good faith.  That is of course no longer the case – now the worker has to have a reasonable belief that their disclosure is made in the public interest.  Both can be, for different reasons, tricky tests;

• The public interest test was in part introduced in order to reverse the effect of the decision in Parkins v Sodexho, so that it is no longer open (or at least, not quite as open) to an employee to show that complaining about a breach of their own contract is in the public interest (this may still be possible, if it can be argued that a relatively small group – 100 senior managers in the case of Chestertons v Nurmohamed – formed a sufficient part of the public to satisfy the public interest test.  This case is due to be heard by the Court of Appeal in June, so watch this space for what I hope will be greater clarity on the question of the extent of the public interest requirement);

• The worker does not have to prove that the facts or allegations disclosed are true, or that they are capable in law of falling within one of the relevant prescribed six categories.  As long as the worker subjectively believes that the relevant failure has occurred or is likely to occur and their belief is, in the tribunal’s view objectively reasonable, it does not matter if the belief subsequently turns out to be wrong.  Similarly, the reasonable belief/public interest test can be satisfied where there is no public interest in the disclosure being made, provided that the worker’s belief that the disclosure was made in the public interest is objectively reasonable;

• The dismissal is automatically unfair if the reason (or principal reason) is that the employee made a protected disclosure;

• It is possible to distinguish between the fact of a disclosure and the manner in which it is made.  If the latter is inappropriate, protection can be lost – but this is a massively fine line, and is always going to be a pretty bold choice for the employer (see Panayiotou v Kernaghan 2014);

• Similarly, drawing on the Beatt case, it is not right to conclude that the employer could never dismiss in similar circumstances – but the risk is again high and requires a really delicate assessment.  If the tribunal had been persuaded at first instance that he did not have a reasonable belief that his disclosures were in the public interest/that they fell within the s43B list, then protection would have fallen away and he would have been left simply with an ordinary unfair dismissal claim – which might well have been successfully defended under normal principles;

• Even so, this involves a big risk for employers – leaving Underhill LJ with the last word (always a good idea):
"it is all too easy for an employer to allow its view of a whistle blower as a difficult colleague or an awkward personality (as whistle blowers sometimes are) to cloud its judgement about whether the disclosures in question do in fact have a reasonable basis or are made (under the old law) in good faith or (under the new law) in the public interest. Those questions will ultimately be judged by a tribunal, and if the employer proceeds to dismiss it takes the risk that the tribunal will take a different view about them. I appreciate that this state of affairs might be thought to place a heavy burden on employers; but Parliament has quite deliberately, and for understandable policy reasons, conferred a high level of protection on whistle blowers. If there is a moral from this very sad story, which has turned out so badly for the Trust as well as for the Appellant, it is that employers should proceed to the dismissal of a whistle blower only where they are as confident as they reasonably can be that the disclosures in question are not protected (or, in a case where Panayiotou is in play, that a distinction can clearly be made between the fact of the disclosures and the manner in which they are made)." (Paragraph 94 of the judgment).

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