rch_watkinsonEAT2011
EAT VICTIMISATION DISCRIMINATION
Whistleblowing
Protected disclosure
The Claimant was employed as Chief Executive of the Respondent with effect from 1 January 2007. A major issue was whether Upper GI services, which were then provided at Derriford, which was near Plymouth and Treliske, should thereafter be based solely at Derriford. The controversy was whether there was a need for consultation (which entailed disclosure of proposed changes coupled with provision of sufficient information which would enable interested parties to express their views before a final decision was taken) or public engagement (which was a less rigorous process and which entailed conveying information to the public of a decision which had been taken).
The Claimant was strongly in favour of the need for consultation for this change. The South West Strategic Health Authority (‘SHA’) supervised the activities of the Respondent and its Chief Executive and Chair believed that consultation was not necessary.
In August 2008 the Claimant informed the Board of the Respondent that an opinion had been obtained from counsel stating that the Respondent and the Primary Care Trust (‘PCT’) would be acting unlawfully if they did not consult on the proposed changes. This information came to the attention of the SHA for which it was ‘a severe irritant’.
The Claimant was subsequently suspended and was eventually dismissed just before a meeting which, if the Claimant had not been dismissed, he would have attended and reiterated the advice that to proceed without consultation was illegal and that would be an obstacle to the wish of the SHA to transfer the service.
The Employment Tribunal held that he was dismissed as a result of pressure applied by the SHA to the Respondent as a result of the August disclosure.
The Respondent appealed.
Held:
The appeal was dismissed because:-
(a) The August disclosure was a ‘protected disclosure’ within the meaning of section 43B(1)(b) of the ERA and it complied with the requirements of that provision as the Claimant’s disclosure of counsel’s advice showed that the Respondent and the PCT would be likely to fail to comply with their legal obligations if they did not consult on the changes;
(b) There was clear evidence from which the Tribunal could infer that the SHA applied pressure on the Respondent to dismiss the Claimant for the August disclosure especially as the Tribunal found that the Respondent’s reason for dismissing the Claimant, namely the breakdown of trust and confidence, was not established and the SHA had a clear motive for having the Claimant dismissed when it did and it supervised the Respondent; and
(c) The Tribunal reached decisions open to them and for which they gave full and adequate reasons.
Silber J
[2011] UKEAT 0378 – 10 – 1708
Bailii
England and Wales
Employment
Updated: 09 November 2021; Ref: scu.442779