A Mistaken Belief Did Not Prevent Whistleblower Protection

25 July 2017

If the reason, or principal reason, for dismissal is because of an employee’s protected disclosure (whistleblowing), the employee’s dismissal is automatically unfair. This will be the case even if the employer has a mistaken belief that the employee’s disclosure was not ‘protected’ for the purposes of the whistleblowing legislation.

This rationale was confirmed in the recent case of Beatt v Croydon Health Services NHS Trust.

Following the death of a patient, Dr Beatt raised his concerns to the Trust on a number of occasions about whether there were sufficient levels of nursing staff with sufficient experience to ensure the safe performance of medical procedures. The Trust carried out an investigation into Dr Beatt’s concerns, which concluded that his allegations were “entirely without merit and…gratuitous in nature”.

Dr Beatt was subsequently dismissed on the grounds of gross misconduct. Amongst the reasons given was the fact that he had made unsubstantiated and unproven allegations about unsafe service and unsafe staffing levels within the cardiology service at the Trust.

Dr Beatt brought a claim against the Trust for automatic unfair dismissal on the basis that he had been dismissed for being a whistleblower, because of the protected disclosures he had made about staffing levels, staff experience and patient safety.

The Trust accepted that Dr Beatt had been dismissed because of his disclosures; however it sought to argue that because, at the time of his dismissal, it did not believe that Dr Beatt’s disclosures were protected, the reason, or principal reason, for his dismissal could not possibly be because he was a whistleblower.

The case ended up in the Court of Appeal, which restored the ET’s original finding of automatic unfair dismissal. The Court dismissed the Trust’s defence. Its mistaken belief that Dr Beatt’s disclosures were not protected did not prevent a finding of automatic unfair dismissal.

The Court asked itself two questions:

  1. Was the reason, or principal reason, for Dr Beatt’s dismissal because he had made a disclosure?
  2. Was that disclosure a ‘protected disclosure’? The answer to both of these questions was ‘yes’.

Determining whether a disclosure is protected can sometimes be difficult, especially when considering the legal issue of whether a disclosure is made in the public interest. It is not surprising that an employer, without the benefit of legal advice, might reach the wrong conclusion. Misjudging the situation can put an employer at risk if it subsequently dismisses what it perceives to be a difficult employee because they have made what the employer believes to be false or unfounded allegations. Employers in these situations must act carefully to avoid an adverse finding of automatic unfair dismissal.

By Michelle Tudor

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