Where the making of a disclosure is the principal reason for a dismissal, is the decision-taker's belief about whether the disclosure is protected relevant?
No, held the Court of Appeal in Beatt v Croydon Health Services NHS Trust.
This case revolves around bitter feuds in what Underhill LJ described as the "dysfunctional" cardiology department at Croydon University Hospital.
The Claimant, a cardiologist, was involved in an invasive procedure that led to a patient's death. During the course of the operation, his most trusted nurse, Sister Jones, was suspended. So far as the Claimant was concerned, the timing of the suspension was irresponsible and the nurse's absence from theatre contributed to the patient's death. The Claimant made various disclosures related to this incident and his belief the actions compromised patient safety resulting from what he considered to be a lack of sufficient specialist staff.
The hospital decided the allegations were gratuitous, without merit, and motivated both by the Claimant's antagonism to the department's assistant director and his wishes for Sister Jones's reinstatement. Disciplinary proceedings were brought against the Claimant and he was dismissed. The employment tribunal found the principal reason for the Claimant's dismissal was the making of protected disclosures.
Whilst there were a number of grounds of appeal, the principal point of interest concerned the hospital's belief that the Claimant's disclosures (for which he was dismissed) were not protected because they were made in bad faith or were not in the public interest (as per whichever of the two statutory tests was in force at the date of each disclosure). The Court of Appeal considered this irrelevant. The question under ERA s.103A is an objective one to be determined by the employment tribunal. To hold otherwise would in many cases deprive s.103A of its intended protection.
Thus given the employment tribunal found objectively that the disclosures were protected, and that the principal reason for the dismissal was making those disclosures, the Court of Appeal upheld the employment tribunal's finding of automatic unfair dismissal.
Thanks to Jason Braier of Field Court Chambers for preparing this case summary.