Protected Disclosure Test is Objective

07 June 2017

For a person to be protected by whistleblowing legislation they must have made a protected disclosure. A key part of this is conveying certain information that they believe is in the public interest (this replaces the old requirement that the disclosure be made ‘in good faith’). Dismissing someone because they made a protected disclosure is automatically unfair.

Beatt v Croydon Health Services NHS Trust

For a person to be protected by whistleblowing legislation they must have made a protected disclosure. A key part of this is conveying certain information that they believe is in the public interest (this replaces the old requirement that the disclosure be made ‘in good faith’). Dismissing someone because they made a protected disclosure is automatically unfair. 

Dr Beatt was dismissed from his job as a consultant cardiologist. In the lead-up, he had made a series of disclosures relating to the safety and staffing of the department in which he worked. This was sparked by the suspension of a nurse, whom he held in high esteem, during the working day. He believed that her absence contributed to the death of a patient. The Trust concluded that Dr Beatt’s allegations were ‘entirely without merit...and gratuitous in nature’ and, all in all, he was guilty of gross misconduct. 

Unfair dismissal, the tribunal said. The main reason for the dismissal was the protected disclosures, and it is automatically unfair to dismiss on that basis. One of the issues for the Court of Appeal concerned an employer’s thought process. If an employer didn’t believe that the disclosures were protected (because they were either made in bad faith or were not in the public interest), could it still face liability? 

Yes, because whether or not a disclosure meets the statutory test to qualify as a protected disclosure is objective; it is what it is. If the disclosure ticks the whistleblowing boxes and is the reason for the dismissal, then it doesn’t matter that the employer didn’t think it was a protected disclosure. 

The Court of Appeal upheld the unfair dismissal decision. It also made some interesting observations, including this one: 

“...[I]t is all too easy for an employer to allow its view of a whistleblower as a difficult colleague or an awkward personality (as whistleblowers 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.”


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