In DLA Piper’s latest case report, the Employment Appeal Tribunal (EAT) held that a police officer who made protected disclosures was dismissed after taking matters into his own hands and becoming difficult to manage because he was not satisfied with the action taken following the concerns that he had raised, and that he was not dismissed for blowing the whistle.
Panayiotou v Kernaghan and others EAT/0436/13
Mr Panayiotou was a police officer in the Hampshire Constabulary. During his employment, he made a number of protected disclosures to senior officers regarding his colleagues’ treatment of victims of rape, child abuse and domestic violence.
Mr Panayiotou’s concerns were investigated and, for the most part, upheld. However, Mr Panayiotou was not satisfied with the action taken following his complaints and sought to take matters into his own hands. He campaigned for the police force to take the actions that he believed were appropriate in the circumstances. In doing so, he raised a number of grievances and became particularly difficult to manage.
After a period of absence on sick leave, Mr Panayiotou was dismissed by his employers. He subsequently brought a whistleblowing claim, alleging that he had been subjected to various detriments as a result of the protected disclosures. He also claimed that he had been unfairly dismissed because the protected disclosures were the principal reason for his dismissal.
Employment tribunal decision
The employment tribunal considered that Mr Panayiotou’s employer had had to devote a great deal of management time to responding to his correspondence and complaints and that, unless they were dealt with as he wished, Mr Panayiotou would continue to pursue the matter relentlessly. The tribunal found that Mr Panayiotou was dismissed because of his long-term sickness absence, together with the manner in which he had pursued his complaints. In doing so, the tribunal separated the fact that Mr Panayiotou had made protected disclosures from the manner in which he went about the process of dealing with those disclosures.
Grounds for appeal
There were two principal grounds of appeal. The first element of the appeal was that the tribunal had wrongly concluded that once an employee had made a number of protected disclosures, there came a time when subsequent disclosures were no longer protected. In essence, the tribunal wrongly concluded that it had become part of a “campaign”, with the effect that any actions taken by the employer that were influenced by those later disclosures would not amount to an unlawful detriment.
The second limb of the appeal was that it was impermissible for the tribunal to have concluded that the way in which Mr Panayiotou had pursued his complaints could be separated from the fact that he had made protected disclosures. On this reasoning, it followed that the tribunal could not have held that his dismissal had arisen by reason of former and not the latter.
The EAT rejected Mr Panayiotou’s appeal. It held that the tribunal had not purported to say that once an employee had made a number of protected disclosures, there comes a time when subsequent disclosures are no longer protected. In the EAT’s view, the tribunal had sought to distinguish between the fact that Mr Panayiotou made protected disclosures and the manner in which he pursued the issues that had been raised. The fact that a protected disclosure had been made is separable from the manner in which Mr Panayiotou conducted the campaign that followed.
The EAT held that the tribunal did not err in its approach to deciding that Mr Panayiotou had not been subjected to detriments on the ground that he had made protected disclosures, or in deciding that the reason or principal reason for his dismissal was not the fact that he had made such disclosures. The tribunal was therefore entitled to conclude that Mr Panayiotou had been dismissed because of the manner in which he dealt with making protected disclosures and not for having made the disclosures. Therefore, a factor related to a protected disclosure might, in certain circumstances, be separable from the actual act of disclosing the information itself.