DISCIPLINARY HEARINGS AFTER A PROTECTED DISCLOSURE

The recent case of Croydon Health Services NHS Trust v Beatt UKEAT/0136/15/JOJ has shown that an Employment Tribunal (ET) must analyse any evidence of conduct/ disciplinary issues even where an employee has made a protected disclosure.

In this case, Mr Beatt had been employed as a consultant Cardiologist until he was dismissed for gross misconduct in September 2012. His dismissal was at the end of a disciplinary hearing where his employers upheld six out of nine “disciplinary charges” against him.

After an unsuccessful internal appeal Mr Beatt made a claim to the ET on the basis that his dismissal was not actually as a result of any misconduct, but because he had made protected disclosures and that “the disciplinary process prior to dismissal, the dismissal itself, the internal appeal process and acts of post-termination ‘victimisation’ were unlawful” because they amounted to “detrimental treatment” as a result of those protected disclosures.

The Employment Tribunal

• agreed that some of the communications which Mr Beatt did rely on did amount to protected disclosures and
• upheld Mr Beatt’s claim that the “sole or principal reason” for his dismissal was because he had made a protected disclosure

However Croydon Health Services NHS appealed to the Employment Appeal Tribunal (EAT) who upheld their appeal on the basis that:

• that the original Employment Tribunal had not determined “the set of facts known to the employer, or it may have been beliefs held by him which had caused him to dismiss the employee”
• and instead had “embarked on its own assessment of the conduct charges”.

The case will be heard by a fresh Employment Tribunal.

Employers should review disciplinary proceedings to ensure that full records are made and retained which reflect

• the full reasons for allegations of conduct
• what was taken into account at any disciplinary proceedings, including all points made by the employee and
• the full reasons for their decisions.

EMPLOYEE’S CONDUCT DURING EMPLOYMENT TRIBUNAL PROCEEDINGS

In contrast, the case of Sud v The Mayor and Burgesses of the London Borough of Hounslow UKEATPA/0182/14/DA also started as relating to protected disclosures but actually considers conduct before an Employment Tribunal (ET).

Mrs Sud brought ET claims of unfair dismissal, disability discrimination and detriment against her employer relating to protected disclosures and the case was eventually listed for eight days. However, just before that hearing Mrs Sud made a last-minute request for an adjournment on medical grounds, supported by medical evidence. The adjournment was granted. However, the Tribunal subsequently found that Mrs Sud had:

• “told a lie about her medical condition” and
• “altered the date on a relevant document”

On the grounds that Mrs Sud had “deliberately misled the tribunal” and the case was “longer triable” the ET:

• struck our Mrs Sud’s entire claims and
• ordered her to pay a contribution towards her employers costs of £18,458.50

Mrs Sud then appealed to the Employment Appeal Tribunal (EAT) on the basis that the Employment Tribunal had made a mistake in law. However the EAT:

• dismissed her appeal (to pay the original costs) and
• actually awarded Mrs Sud to pay the eventual amount of £2,500 plus VAT

To look at recent case law relating to what amounts to a protected disclosure, see:
http://practiceindex.co.uk/gp/blog/hr-human-resources/hr-employment-law-updates-news-week-43/

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