Ciaran Robertson | Solicitor

The Whistleblowing Doctor, the Protected Disclosure & the Unfair Dismissal

Employment Appeals Tribunal (EAT) upholds decision in favour of Whistleblower in Dr Beatt –v– Croydon Health Services NHS Trust

Facts

Dr Beatt was a consultant cardiologist with Croydon University Hospital from 2005 until September 2012, when he was dismissed after making various disclosures regarding the Respondent’s decision to suspend the most senior nurse, in the middle of a working day.

Dr Beatt led the cardiology department which specialised in interventional heart procedures with only a small number of nurses to assist on a regular basis. On 9th June 2011, a nurse within this department, Sister Lucy Jones, was called to a meeting due to reports that she had been rude and abusive towards members of staff. Dr Beatt attended this meeting with her, however, was then called to the operating room to take over a procedure. When the meeting resumed, in Dr Beatt’s absence, Sister Jones was suspended. In the meantime complications had developed in the operating room and the patient, referred to by the Employment Tribunal as “GS”, tragically died from a cardiac arrest.

The Protected Disclosure
It was Dr Beatt’s strongly held view that the absence of Sister Jones contributed to the patient’s death and, in addition, that following her suspension, there was a shortage in specialist nursing staff which led to concerns for patient safety. He raised these issues on a number of occasions during the following weeks, however, following an investigation, the Respondent concluded that his allegations were ‘entirely without merit’, ‘gratuitous in nature’ and motivated both by his wishes to have Sister Jones reinstated and his ‘strong personal antagonism’ towards the assistant director.

The Unfair Dismissal
Dr Beatt was dismissed for gross misconduct on the basis that the disclosures were ‘unsubstantiated and unproven’, but the Employment Tribunal held in 2013 that there had been no evidence of wrongdoing by Dr Beatt and he had been unfairly dismissed for making a protected disclosure.

The Appeal
The EAT firstly considered if the disclosure was the principal reason for the dismissal and secondly, the relevance of the employer’s belief that the disclosures were made in bad faith and therefore were not protected by the Public Interest Disclosure Act 1998 Act. The EAT were very clear when addressing this point and held that it is not for the employer to decide whether a disclosure is protected and therefore is irrelevant to consider this reasoning.

LJ Underhill held that it would enormously reduce the scope of the protection if liability could only arise where the employer believed that the disclosures for which the claimant was being dismissed were protected. The question of statutory protection is therefore, an objective one to be determined by the Tribunal. He continued to note that it is all too easy for an employer to allow its view of a whistleblower as a difficult colleague or an awkward personality to cloud its judgement about whether the disclosures in question do in fact have a reasonable basis.

The moral of this case reinforced the point that employers should only proceed to dismiss a whistleblower, ‘where they are as confident as they reasonably can be that the disclosures in question are not protected.’

In Dr Beatt’s case, the EAT upheld the decision that the whistleblowing was the principal reason for the dismissal, the disclosures were protected and the dismissal was automatically unfair.

The Employment Team at Jackson Boyd specialises in helping workers who believe they have been treated unfairly as a result of whistleblowing as well as helping employers who may be considering implementing or revising a whistleblowing policy. Please feel free to contact us, should you require any further information on 0333 222 1855 or by clicking here

Ciaran Robertson

Ciaran Robertson

Employment Law Team

“My passion has always been for Employment Law and I am grateful to be in a position in which I can focus entirely on this field.”

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