Whose Lie Is It Anyway? Not For Employer To Decide If Whistleblowing Disclosure Is Protected
For a whistleblower to benefit from the statutory protections, his disclosure must be protected, i.e., be (usually) about the breach of a legal obligation and reasonably believed by him to be true and in the public interest. If he deliberately lies or makes his disclosure only to advance his own interests or prejudice somebody else’s, he may lose that protection. While he may still be able to claim unfair dismissal, he cannot get to the uncapped compensation available to ‘proper’ whistleblowers.
But who decides whether he is lying or whether he reasonably believes he is acting in the interests of the public. Is it the employer or the Employment Tribunal?
Beatt –v– Croydon Health Services NHS Trust was a long story. A very long story. The Employment Tribunal judgment ran to over 200 pages, an “immense labour” said the Court of Appeal, clearly damning with faint praise. However, it was also somewhat randomly paragraphed and rather repetitive, and “not a model I would encourage others to follow” said the Judge shortly afterwards, so abandoning the “faint praise” bit of that almost immediately.
Dr Beatt made disclosures about his employer’s decision to suspend one of his key assistants more or less mid-surgery. He alleged, and the Coroner later accepted, that this had potentially contributed to the death of a patient. He also made a related series of complaints about other members of his surgery team which the Trust eventually decided had been made out of personal malice rather than any objective and genuine concern about patient safety at the Trust. Therefore it dismissed Dr Beatt for misconduct, accepting entirely that it was because of his disclosures, but denying liability because (in its view) those disclosures were “unsubstantiated and unproven” and in part aimed at discrediting and destabilising others.
The ET was critical of the Trust taking 9 months to investigate the charges against Dr Beatt, but it was not until close on five years later that the case staggered wearily into the Court of Appeal, reduced essentially to a single question – at the point in the legislation where it says that whistleblowing protections are engaged “if the reason for the dismissal is that the employee made a protected disclosure”(section 43 ERA 1996), is it the employer’s reason which matters or the actual reason?
That is not as obvious as it sounds. Remember that in most cases the fairness of a dismissal is based on the employer’s reasonable belief at the time, so a termination for misconduct could be fair even if the Employment Tribunal later found that there had been none.
The Court of Appeal was clear – the employer’s belief in whether the disclosure was genuinely made in the public interest or with any real belief in its truth is not the determining question. If it were, it would be too tempting for employers to argue that they saw some element of malice or self-advancement in the disclosure, that whistleblowing protection was therefore forfeited and that the subsequent dismissal was fair. After all, it is well recognised that protected disclosures are not always factually well-founded, that they are sometimes intemperate in tone and that they will often necessitate damaging criticisms of other employees. Such arguments would be easy to make. No, the question of the employee’s reasonable belief that his disclosure was true and in the public interest was for the Employment Tribunal to decide as an issue of fact, and not for the employer as a matter of its perception at the time.
Lessons for Employers:
1 The Trust said that even if Dr Beatt’s conduct in making his complaints had not been found to be misconduct, it was still a “breach of trust and confidence” meaning that he had to go anyway. The Court of Appeal agreed that in the right circumstances a valid distinction could indeed be made between dismissal for the fact of making a disclosure and dismissal for the manner in which it is made, which could potentially be fair. However, to get home on the manner point, the employee’s conduct had to be really seriously unreasonable, rather than merely ordinarily so. If you retaliate against ordinary unreasonableness you will be treated as retaliating against the disclosure itself, and will therefore be sunk.
2 If you are going to rely on a lack of reasonable belief by the employee in the truth or public interest element of his disclosure, do be very sure (i) you are right; and (ii) even more so, you can prove it. The Trust’s witnesses were kicked all around the ET’s park in credibility terms because they were largely unable to explain why they had reached the conclusions they had about Dr Beatt’s motives.
3 Last, do remember that nailing your pleaded colours to the mast of the disclosure being unprotected is a high-risk play – you have just freely admitted that your dismissal was in retaliation for the disclosure, so if it turns out to be protected after all, you are in a lot of trouble.