Croydon Health Services NHS Trust v Beatt

In a whistleblowing dismissal claim, the tribunal must determine the facts known, or beliefs held, by the employer which caused the dismissal. It must not substitute its own assessment of the strength of disciplinary allegations for a reasoned finding about the decision-makers’ actual motivation.

A factual connection between disciplinary allegations and protected disclosures does not, without more, establish the required causal link. Where inadequate reasoning leaves the reason for dismissal and the outcome of an internal appeal unsafely determined, the issues should be remitted for rehearing before a fresh tribunal.

The claimant, a consultant cardiologist, was summarily dismissed for gross misconduct following disciplinary proceedings and an internal appeal. He contended that the real reason for dismissal was his protected disclosures concerning patient safety.

The Employment Tribunal held that dismissal was automatically unfair under section 103A of the Employment Rights Act 1996, and upheld certain post-termination detriment complaints. The Trust appealed. It challenged, among other matters, the Tribunal’s reasoning on the reason for dismissal and its treatment of the internal appeal. The central issue was whether the Tribunal had made a sustainable finding that protected disclosures, rather than conduct, caused the dismissal.

1. Appeal allowed in part. The Employment Tribunal’s finding that protected disclosures were the sole or principal reason for dismissal could not stand. The Tribunal had accepted that the employer advanced conduct as a potentially fair reason and that the investigation and disciplinary hearing broadly appeared balanced. It then reassessed the merits of the disciplinary allegations and treated them as unpersuasive, without analysing why the evidence of the disciplinary and appeal decision-makers as to their reasons was false or misleading.

2. Applying the definition in Abernethy v Mott, Hay and Anderson [1974] ICR 323, the material inquiry was the facts known or beliefs held by the employer which caused the dismissal. The Tribunal did not answer that inquiry by finding merely that some disciplinary allegations were related to the subject matter of the protected disclosures. That relationship did not satisfy the required causation test.

3. The Tribunal also gave no clear reasoning for its conclusion that the internal appeal panel acted because of protected disclosures rather than the conduct grounds advanced by the employer.

4. The automatically unfair dismissal issue was remitted to a fresh Employment Tribunal. The alternative finding of ordinary unfair dismissal, and the questions of Polkey and contributory conduct, were also left for that Tribunal. The post-termination detriment issues depended upon the fresh Tribunal’s findings on motivation.

5. Ground 1 was dismissed. The original Tribunal was entitled to find that disclosure 14 was substantially true and made in good faith.

• Employment Appeal Tribunal: Allowed the Trust’s appeal on the deficient reasoning concerning the reason for dismissal and internal appeal, and remitted the consequential issues to a fresh Employment Tribunal. It dismissed the challenge to the finding on disclosure 14.
• Employment Tribunal (London South): Held that dismissal was automatically unfair under section 103A of the Employment Rights Act 1996 and upheld certain post-termination detriment complaints.