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An Employer's Belief that a Whistleblowing Disclosure was Not Protected is Irrelevant!

In Beatt v Croydon Health Services NHS Trust the Court of Appeal had to consider whether an employment tribunal had correctly decided that the reason that an NHS Trust had dismissed a doctor was that he had made protected disclosures. A disclosure will be protected if it meets the statutory conditions in Part IVA of the Employment Rights Act 1996 (ERA). If an employer is then later held to have dismissed the employee for making a disclosure that was protected, the dismissal will be automatically unfair under section 103A of the ERA.

In this case, the Court allowed the appeal thereby restoring the original judgment of the employment tribunal that the doctor had been unfairly dismissed under section 103A. In rejecting the Trust's argument, that an employer who did not believe that the employee had made a protected disclosure could not be held to have dismissed the employee for such a disclosure, the Court identified two key questions:

  1. whether the making of the disclosure was the reason for the dismissal?; and
  2. whether the disclosure in question was a protected disclosure within the statutory definitions of the ERA?

The first question requires a fact finding exercise into what caused the employer to decide to dismiss the employer. In contrast, the beliefs of the employer are irrelevant to the second question, as it is an objective test to be determined by reference to the statutory definitions in the ERA. The court based its decision on policy grounds, commenting that the Trust's argument would enormously reduce the scope of the protection afforded by the whistleblowing provisions if liability under section 103A could only arise where the employer itself believed that the disclosures were protected.

The lesson from this case, is that employers should only proceed to the dismissal of a whistleblower where they are as confident as they reasonably can be that the disclosures of the employee in question are not protected under the ERA!

 

This bulletin is for general guidance purposes only and should not be used for any other purpose.

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