• 28th June 2017

The Court of Appeal has decided that, in a whistleblowing dismissal case, it is irrelevant that the employer genuinely believed that the employee’s disclosure was not protected. A disclosure will be protected if it meets the statutory conditions in Part IVA of the Employment Rights Act 1996 (ERA 1996), and this is an objective test. If the employer dismisses the employee for making a disclosure that a tribunal later finds was protected, the dismissal will be automatically unfair under section 103A of the ERA 1996.

This case highlights that, whilst it remains possible to dismiss an employee for making disclosures, it is a potentially high risk strategy, depending entirely on a tribunal agreeing that the disclosure is not protected (because, for example, the employee did not reasonably believe that the disclosure tended to show one of the six categories of failing in section 43B of the ERA 1996 or that it was not made in the public interest). (Beatt v Croydon Health Services NHS Trust [2017] EWCA Civ 401.)

Summary:

This Judgement is unsurprising as, for policy reasons, a high level of protection is granted to whistleblowers. Quoting the Judge “if there is a moral from this very sad story” it’s that employers should proceed with caution when dismissing someone who has made disclosures as high-risk strategy, making sure the disclosures in question are not protected or, that a distinction can clearly be made between the fact of the disclosures and the manner in which they are made.