When considering a claim of automatic unfair dismissal by an employee as a result of making protected disclosures, the Employment Appeal Tribunal (EAT) held in University Hospital North Tees & Hartlepool NHS Foundation Trust v Fairhall that tribunals only have to investigate the thought processes of the dismissing officer if they were aware that the reason for dismissal was because the employee had blown the whistle.
Basic facts
Ms Fairhall, a senior nurse with 38 years’ continuous service in the NHS, had an unblemished employment record. Following a change of policy, she became concerned about the increase in workload on her team of district nurses and the potential impact that this might have on patient safety.
Shortly after the death of a patient, Ms Fairhall told her employer that she wished to formally instigate the whistleblowing policy. She was then suspended, made the subject of a disciplinary investigation (during which she raised a grievance that was rejected) and dismissed. She claimed unfair dismissal and automatically unfair dismissal, among other things, on the basis that she had made a series of protected disclosures (blown the whistle).
Tribunal decision
Upholding all her claims, the tribunal found that her suspension was unjustified and unreasonable. Noting that the suspension letter referred to “allegations of potential gross misconduct” regarding her leadership and “concerns in relation to inappropriate and unprofessional behaviour including bullying and harassment”, it found that no such allegations had been made. The tribunal considered that her treatment was not only grossly unfair, but was the culmination of a process, involving numerous people, designed to get rid of her for the simple reason that she had made protected disclosures.
The trust appealed against that decision. In particular, it argued that the tribunal had misapplied the burden of proof by placing a “positive evidential burden” on the trust to prove that making the protected disclosures was not the main reason for the dismissal.
EAT decision
Rejecting the appeal, the EAT held that tribunals should not get too “obsessed” with the burden of proof and should, instead, use their common sense. In this case, the tribunal was entitled to find as fact that the reason, or principal reason, that the disciplinary hearing panel dismissed the claimant was that she had made protected disclosures, not least because there was no evidence to substantiate the argument that there was some other reason for dismissing her.
It then went on to hold that where a claimant has established a prima facie case that the dismissal was because they had made a protected disclosure, the tribunal did not need to go any further in terms of considering an alternative reason for dismissal.
The EAT acknowledged, however, that it can be difficult for claimants to establish the extent to which the whistleblowing impacted on the decision-making process of the dismissing officer. It can be particularly complicated in circumstances where the dismissing officer has been misled by another manager so as to engineer a dismissal, as in the case of Royal Mail Group v Jhuti (weekly LELR 656).
However, the EAT held that this was no Jhuti-type case in which an innocent decision maker was manipulated by others into dismissing the claimant. The tribunal had properly considered the reasoning process of the chair of the disciplinary panel, who was the only witness called by the trust to appear before the tribunal. It was therefore perfectly acceptable to focus on her state of mind alone, and there was no need for the tribunal to investigate the thought processes of the other managers involved.
Comment
This is another sensible decision from employment judge Tayler which cuts through the employer’s attempts to evade liability by claiming that the tribunal must explore everyone’s state of mind, while only offering up one witness for questioning. This was not a case where the dismissing officer was a patsy unknowingly manipulated to sack a whistleblower. If it had been, then a wider examination of motives would be needed. Instead, this was a case where the disciplinary panel were “in on it” and the sole witness not only spoke for them all but dragged them all down with her.