Royal Cornwall Hospitals NHS Trust v Watkinson

A disclosure may be protected where, in the worker’s reasonable belief, it tends to show that a person is likely to fail to comply with a legal obligation. An actual breach is unnecessary. The assessment must consider the factual context in which the disclosure was made.

Communicating legal advice about the steps required to comply with a statutory duty may disclose information rather than merely make an allegation. An Employment Tribunal’s factual and motivational findings should be read as a whole. An appellate tribunal should intervene for inadequate reasoning only where a matter of central significance has not been addressed.

Mr Watkinson, Chief Executive of Royal Cornwall Hospitals NHS Trust, was dismissed after disclosing legal advice that the Trust and a primary care trust would act unlawfully if Upper GI cancer services were transferred without prior consultation.

The Employment Tribunal found that the disclosure was protected and that the dismissal was automatically unfair under section 103A of the Employment Rights Act 1996. It rejected a separate claim concerning a later disclosure. The Trust appealed, challenging the characterisation of the August disclosure and the Tribunal’s findings concerning knowledge, motivation, pressure from the South West Strategic Health Authority and the adequacy of its reasons.

Appeal dismissed. The Employment Tribunal’s decision that the dismissal resulted from the August protected disclosure was upheld.

1. Protected disclosure. Section 43B(1)(b) of the Employment Rights Act 1996 requires a disclosure of information which, in the worker’s reasonable belief, tends to show that a person has failed, is failing or is likely to fail to comply with a legal obligation. The provision does not require proof of an actual breach. The issue must be assessed against the whole factual matrix, including the known determination of the relevant bodies to proceed without consultation.
2. The Claimant disclosed information by communicating counsel’s advice that the Trust and the primary care trust were under a duty to consult and would act unlawfully if they moved the services without prior consultation. That was information about what had to be done to comply with the duty, not merely an allegation. The Employment Tribunal was entitled to find that the disclosure tended to show a likely breach.
3. Appellate review. An Employment Tribunal’s reasons must be read fairly and in the round. It need not address every piece of evidence or submission. An error of law arises only where it failed to address a matter of central significance necessary to explain the result. The Tribunal’s detailed reasoning satisfied that threshold.
4. Knowledge and motivation. The Tribunal was entitled to infer that the Strategic Health Authority knew of the disclosure from routinely circulated Board papers and minutes. It was also entitled to infer that the Authority’s pressure caused the dismissal, particularly because the Trust’s asserted reason of breakdown of trust and confidence was not established, the Authority had a motive to remove an obstacle to the proposed transfer, and important Authority witnesses were not called.
5. The Tribunal properly distinguished the Claimant’s general support for consultation from the August disclosure. The disclosure gave legal justification to his position and was an immediate obstacle to proceeding without consultation. No material error was shown in the Tribunal’s treatment of the pre-dismissal detriments or the later consultation process.

• Employment Tribunal: by decision dated 4 May 2010, found automatic and ordinary unfair dismissal arising from the August protected disclosure, rejected the claim based on the 30 September disclosure, and adjourned remedies.
• Employment Appeal Tribunal: dismissed the Trust’s appeal and upheld the finding concerning the August disclosure.