A Case of Putting the Cart Before the Horse?

Abstract

In the case of Beatt v. Croydon Health Services Trust,1 the Court of Appeal has recently handed down a judgment that, if it stands, will have profound implications as to the proper approach to be adopted by tribunals in whistle-blowing cases where the conduct relied on by the employer as the reason for the dismissal is inextricably connected to what the employee claims to have been the making of the ‘protected disclosure’ in question: for example, where an employee is dismissed for making allegations concerning safety issues which the employer believes were not only unfounded but were made knowing that they were unfounded, and for an ulterior purpose. (Although the appeal raised a number of subsidiary issues, the focus of this note will be on the main issue and the facts relevant to it.) The legal background against which much of the argument in the Court of Appeal was centred can be summarised in a few sentences, and involves the interplay between sections 98 (1) and 103A of the Employment Relations Act 1996. Section 98 (1) requires the employer to show that the reason or principal reason for the dismissal of the employee relates to capability, conduct or redundancy or ‘some other substantial reason which would justify dismissal’. Only if the employer can show such an admissible reason, can the tribunal proceed to consider whether the decision to dismiss was a reasonable one in all the circumstances. Section 103A provides that an employee ‘shall be regarded as having been unfairly dismissed if the reason or…principal reason for the dismissal is that the employee made a protected disclosure’. A ‘protected disclosure’—a concept introduced by the Public Interest Disclosure Act, 1998—means the disclosure of information relating to a number of specified matters, in particular for present purposes, health and safety concerns, and which is made in the reasonable belief that the information is true. It has been settled law that what is to be treated as ‘the reason or principal reason for the dismissal’ in the context of section 98 (1) is, in the familiar words of Cairns LJ in Abernethy v. Mott Hay & Anderson, ‘a set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee.’: emphasis supplied.2 Thus, a genuine belief in an employee’s dishonesty can be an admissible reason even if that belief is subsequently found by a tribunal to have been mistaken. Where it is alleged that the reason for dismissal was the making of a protected disclosure, the position has generally been understood to be as stated in Kuzel v Roche Products Ltd: namely, although the claimant needs to provide some evidence to support his case that the reason for his dismissal was the making of a protected disclosure, the overall burden remains on the employer to show that the reason for the dismissal was a potentially fair one; ‘if the employer does not show to the satisfaction of the tribunal that the reason was what he asserted it was, it is open to the tribunal to find that the reason was what the employee asserted it was:[i.e. the making of a protected disclosure]’.3