29 May 2017

Medical practitioners are regulated by the General Medical Council (GMC). The GMC’s Guidance, 'Raising and acting on concerns about patient safety', sets out the GMC’s expectation that all doctors will, whatever their role, take appropriate action to raise and act on concerns about patient care, dignity and safety.

Doctors employed in the UK by NHS employers who raise patient safety concerns in the workplace are often viewed as difficult by colleagues as well as trouble–makers. This can often cloud an employer’s view on how to deal with the matter. The employees often feel targeted and treated unfairly afterwards – but is that because they “blew the whistle”? Such employees may have protection in terms of whistleblowing legislation and employment law generally.

One recent Court of Appeal case looked at these very issues. 

In this case, a consultant cardiologist brought proceedings asserting that he had been unfairly dismissed for blowing the whistle after revealing what he claimed were unsafe practices at a hospital in England. The whistleblowing legislation (contained in the Employment Rights Act 1996) applies UK wide and the principles of this case therefore apply in Scotland also.

Croydon University Hospital dismissed Kevin Beatt in September 2012 after he highlighted patient safety concerns in the wake of a patient’s death. The unusual aspect to this case was that the Trust explicitly and expressly stated in the dismissal letter that the reasons for dismissing him included the fact that he had made unsubstantiated and unproven allegations of an unsafe service within the hospital.

On the basis of the wording of the dismissal letter, Mr Beatt argued that he had been dismissed because he had made protected disclosures which had been made in the public interest (i.e. raised patient safety concerns). The case therefore hinged on whether his concerns were in fact protected disclosures in terms of the whistleblowing legislation. If the concerns he raised were classed as protected disclosures there would be a finding of automatic unfair dismissal for whistleblowing with unlimited compensation.

The Trust’s only defence was that he had not raised the disclosures (patient safety concerns) in good faith, arguing that he had raised the concerns in bad faith and with an ulterior motive. Good faith was a legal requirement for a disclosure to be “protected” at that time.

This was a risky strategy which ultimately failed for the Trust as the Court accepted that Mr Beatt had raised the concerns in good faith, that in terms of his dismissal letter, the disclosures were the express reason for his dismissal and therefore he had accordingly been automatically unfairly dismissed for raising concerns (“blowing the whistle”). He is now likely to receive significant financial compensation.

The Judge in the case warned that "if there is a moral from this very sad story … it is that employers should proceed to the dismissal of a whistleblower only where they are as confident as they reasonably can be that the disclosures in question are not protected". That is not an easy task nor is it risk-free.

A common theme in such cases was picked up by the Judge in this case who noted that “it comes through very clearly from the papers that the Trust regarded the [employee] as a trouble maker …..and it is all too easy for an employer to allow its view of a whistleblower as a difficult colleague or an awkward personality… to cloud its judgment about whether the disclosures in question do in fact have a reasonable basis or are made (under the old law) in good faith or (under the new law) in the public interest – those question will ultimately be judged by a Tribunal”.

It is worth noting that the facts of this case are rather unusual in that it is more common for a whistleblower to be dismissed by their employer ostensibly for another legitimate reason and it is usually the employee who challenges this, arguing that the true reason for their dismissal is that they have blown the whistle.

The case is a useful review of the cases and law in this area but given that the dismissal took place in 2012, the law has now moved on. There is no longer a requirement for a disclosure to be made in “good faith” before it can qualify as being a protected disclosure and for the whistleblower to have legal protection from detriments/ dismissal because he or she blew the whistle.

Early legal advice on such matters is essential whether you are a potential whistleblower or the employer requiring to manage a whistleblower at work – please contact:

Contact: Caroline Carr, Partner cac@bto.co.uk T: 0141 221 8012