Shiva Shadi, Partner and Head of Employment at Davis Blank Furniss

It has been held that, where the making of a disclosure was the principal reason for a dismissal, the decision taker’s belief about whether the disclosure was protected is not relevant (Beatt v Croydon Health Services NHS Trust).

The tribunal found that the principal reason for the dismissal was the protected disclosures. The hospital appealed, claiming that the disclosures were not protected because they were made in bad faith or were not in the interests of the public. The Court of Appeal considered that this was irrelevant as s103A ERA asks an objective question of whether the disclosures were protected to be determined by the tribunal. As the tribunal found that the disclosures were protected, the Court of Appeal upheld the finding of unfair dismissal.

It should therefore be noted that tribunals will take an objective approach as to whether or not they consider the disclosures to be protected and the decision taker’s opinion is not relevant.

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