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Blowing the Whistle

Dr Beatt worked as a consultant cardiologist for Croydon Health Services NHS Trust (The Trust) from September 2005 to 14 September 2012. Dr Beatt established the interventional cardiology service (The Lab) in 2005 with another consultant. For a short time he was the only consultant in the unit until a further two were employed in 2008. This new team did not work well together. The Trust undertook a formal mediation process in 2010 to try and resolve the situation but these did not improve personal relationships between the consultants.

The Lab only had a small number of nurses who worked there regularly. The head nurse Sister Jones was recruited by Dr Beatt in the early days and he held her in high esteem. Sister Jones was called to a meeting concerning allegations that she had been rude and abusive to two of her colleagues. Dr Beatt initially attended the meeting with her but during a break in the meeting was called to perform a procedure. In his absence, Sister Jones was suspended. During this time complications developed in the procedure being conducted by Dr Beatt and the patient tragically died.

Dr Beatt strongly believed that the suspension of Sister Jones in the middle of a working day was irresponsible and that her absence contributed to the patient’s death as there had been a delay in obtaining a particular piece of equipment during the procedure and Sister Jones would have been able to find this quickly had she been there. He also believed that Sister Jones’ suspension meant that there were insufficient staff with insufficient experience and this called into question the safe environment of The Lab and its procedures. Dr Beatt expressed these views on a number of occasions to various members of the senior management team including the Medical Director and the CEO of the Trust. A Serious Untoward Incident investigation was conducted and it found that the decision to suspend Sister Jones had only been taken after management had ascertained that staffing levels would be satisfactory and that her absence had not contributed to the patient’s death.

In a follow up meeting, Dr Beatt refused to undertake his list of procedures as he believed nursing cover was inadequate. He then did not attend work the following day.

The Trust operates a “Speak Up Policy” that provides investigation to concerns raised by staff. Reporting on Dr Beatt’s concerns it concluded that his allegations were “entirely without merit and gratuitous in nature”. It set out that Mr Beatt had strong personal antagonism towards a colleague and that he conveyed rude or bullying behaviour. The report concluded that Dr Beatt was trying to use the process to get Sister Jones reinstated.

Dr Beatt was suspended and dismissed on the grounds that he had made false accusations of poor patient safety and made unfounded accusations against a colleague.

Dr Beatt brought claims for unfair dismissal as a whistleblower.

Employment Tribunal

The ET upheld the claim for unfair dismissal, concluding that the principle reason Dr Beatt had been dismissed was for making protected disclosures. It set out that The Trust had failed to prove that it had dismissed Dr Beatt for misconduct claiming their evidence to be vague and unconvincing.

Allowing an appeal, the Employment Appeal Tribunal (EAT) found that the ET had failed to connect the protected disclosures to the dismissal and ruled that the case should be reconsidered by a fresh ET.

Court of Appeal

The Trust put forward an argument that the Claimant’s whistleblowing claims could not succeed as, at the time he was dismissed, the decision makers genuinely believed that his disclosures were not protected disclosures, either because they had been made in bad faith or had not been made in the public interest.

The Court of Appeal considered this irrelevant and whistleblowers would not have the protection which Parliament intended if it was open to employers to dismiss on a belief that disclosures were not protected.

In the Court of Appeal’s view, the ET found objectively that the disclosures were protected and that Dr Beatt was dismissed for making the disclosures. Whether a disclosure is protected is the decision of the ET and not an employer.

The Court of Appeal restored the findings of the Employment Tribunal.

Comment

Employers have to be aware of potential whistleblowing claims if an employee raises allegations of e.g. health & safety breaches or criminal offences.

Employees who have made so called protected disclosures have protection against suffering a detriment or being dismissed because they have made a protected disclosure. Any dismissal where the reason or principal reason is that the employee made a protected disclosure is automatically unfair, meaning that the reasonableness of the dismissal including the procedure adopted becomes irrelevant.

Employers should implement a whistleblowing policy which sets out how employees should raise concerns, how they will be dealt with and specifically how employees and managers must behave towards a colleague who has blown the whistle.

If you have any queries relating to whistleblowing or if you have any other employment law or HR queries please contact Joanne Holborn, Tom Scaife or Caroline Rayner on 01228 552600 or 01524 548494.

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