Posted by Gemma Ospedale, Partner
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Manner of disclosure can make whistleblowing dismissal fair
In an interesting and not uncontroversial EAT decision, which may yet be the subject of further appeal, Panayiotou v Chief Constable of Hampshire Police holds that the way in which the employee behaved in disclosing and pursuing his whistleblowing allegations was a fair reason for his dismissal which was not connected to the fact of his whistleblowing. His judgment differs from the decision by the EAT in Woodhouse v West North West Homes Leeds Limited where the EAT held that it would be “an exceptional case” where the disclosure of the protected acts could not be said to cause the detriment concerned. In the current case the judge took the view that there was no additional requirement for the circumstances to be exceptional, because here the way in which the disclosures were pursued was unacceptable to the employer and thus the reason for dismissal.
The police officer concerned made a number of protected disclosures to senior officers. His concerns were largely found to be justified upon investigation but he was not happy with the measures which were taken as a consequence. He adopted an aggressive campaign to try and force the constabulary to take the actions which he believed were appropriate. He lodged a considerable number of grievances which took up a lot of management time. Eventually he was dismissed because of the way in which he pursued his complaints. The Tribunal found that he had become completely unmanageable because he would not accept any answer to the findings of the whistleblowing investigations which did not accord of his own views.
The Tribunal therefore concluded that the reason for the dismissal was “in no sense whatsoever connected with the public interest disclosures”. The EAT agreed, and held that the Tribunal was entitled to draw the distinction between the fact of the whistleblowing disclosures, and the detriment suffered, which was caused by the way in which he pursued his complaints, and not the fact of his making them. However, the concern here is that his pursuance of his complaints, however he did so, was ultimately what caused his dismissal – so perhaps this explains the need for such a case to be “exceptional” and may result in this decision going to the Court of Appeal.
This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.
For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.
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