Casebook

ALM Medical Services v Bladon: [2002] IRLR 807, CA

B disclosed concerns to the nursing home inspectorate about patient welfare at an ALM home where he worked.  The NHI inspected the home and investigated the matter. B was given a written warning about raising the complaint. He was then subjected to another disciplinary hearing and summarily dismissed. He complained of unfair dismissal and that the written warning was a detriment arising from making a protected disclosure. The employment tribunal held that the employer’s evidence was irrelevant and need not be called on the issues relating to protected disclosure and to the reason for dismissal. B succeeded in his case. The Employment Appeal Tribunal (EAT) declined to allow the employer’s appeal on the basis that B had a reasonable belief in the matters disclosed and that it was reasonable to disclose them to the NHI.

The employer appealed to the Court of Appeal, which held that the employment tribunal’s jurisdiction to hear the claim depended on B establishing that he had made a protected disclosure and that was the reason or principal reason for any detriment. The critical issue was whether all the requirements of the protected disclosure provisions had been satisfied on the evidence. It was essential for the tribunal to hear from witnesses on the issues of the employee’s good faith and the reasonableness of external disclosure, as well as the reason for his dismissal.  As no evidence on these points had been allowed by the tribunal, the employer’s appeal was allowed and the case went back to the tribunal for a rehearing with full evidence to cover the employee’s motives, enabling a decision to be made on the question of B’s good faith and his reasonable belief in the matters giving rise to the disclosures.

Street v Derbyshire Unemployed Workers’ Centre [2004] IRLR 687, CA

S was employed as an administrator at DUWC, which was funded by various bodies including Chesterfield Borough Council (CBC). DUWC was managed by a non-employed, elected committee. S wrote to CBC’s treasurer making various complaints about H, the centre’s employed co-ordinator. S later showed a copy of her letter to a member of DUWC’s management committee. H’s conduct was investigated and he was exonerated. DUWC then carried out disciplinary proceedings against S, which resulted in her dismissal for gross misconduct and breach of trust. S brought proceedings in the Employment Tribunal claiming automatically unfair dismissal for having made protected disclosures.

The tribunal held that the complaints about H were qualifying disclosures, which showed that S reasonably believed that he had failed to comply with legal obligations contained in his contract of employment. However, they considered that the disclosures were not protected because they had been made, not in good faith, but on the basis of her personal antagonism towards H.  She lost her case on that ground, although she had passed some of the other tests required by the Act in that:

– she reasonably believed that her allegations were substantially true

– there was no personal gain involved

– she had a reasonable belief that she would be subjected to detriment if she raised the matters directly with her employer

– in all the circumstance, the disclosures were reasonable.

The case went to the EAT, which said there was nothing inconsistent between a person having a true belief but, when they are promoting it for reasons of personal antagonism the tribunal must assess the motive for making the allegations to decide if the applicant has acted in good faith. The decision of the Employment Tribunal was upheld.

The Court of Appeal upheld the EAT decision. A disclosure cannot be made in good faith if an ulterior motive of malice was the main purpose for making it. The purpose of the Public Interest Disclosure Act is not to promote the ability of people to resolve personal grudges but to protect those who make disclosures in the public interest.  

Cooke v West Yorkshire Probation Board, August 2004 (unreported)

C, an occupational health practitioner, was found by an Employment Tribunal to have been unfairly dismissed after having made a protected disclosure arising from the Hepatitis B carrier status of X, a job applicant. The fitness-to-work screening was carried out on paper with access to further medical information. In the event, C found that X was fit for work but there were discrepancies between X’s declared sickness and absence on the job application form and references provided. After seeing X again, C found that he was fit for work. X was prepared to meet human resources to discuss the discrepancies.

HR manager H demanded to see X’s health screening form. C refused, citing NMC guidelines on confidentiality. However, H took the file and read the information. When shown the occupational health guidelines on confidentiality H said that they were “only guidelines”.

Within three months of this incident, C was dismissed, while she was off work for two weeks with work-related stress. The tribunal found that the principal reason for dismissal was because C made a protected disclosure.

C said: “I felt I was being bullied and harassed to share confidential information.” RCN national adviser on OH Carol Bannister says of the case: “Legal standards and good practice in data protection and confidentiality exist to protect the public, employees and ultimately the employer. I hope this case will help occupational health nurses and other health care professionals to reinforce this message.”

Linda Goldman is a barrister at 7 New Square, Lincoln’s Inn. She is head of training and education at ACT Associates & Virtual Personnel. Joan Lewis is senior consultant and director of Advisory, Consulting & Training Associates and Virtual Personnel, employment law and advisory service consultancies, licensed by the General Council of the Bar under BarDirect. Tel: 020 8943 0393

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