Alastair Currie reports on a decision which provides some welcome clarity on dealing with employees whose (potentially valid) whistleblowing concern escalates into a 'campaign' which would be (as the employment tribunal put it) "sufficient to try and to exhaust the patience of any organisation."
The Public Interest Disclosure Act 1998 inserted new provisions into the Employment Rights Act 1996 (ERA) in order to protect individuals who make certain disclosures of information in the public interest.
The Act protects workers who are subjected to a detriment, or dismissed, for making a qualifying 'protected disclosure'.
In order to be protected, a disclosure must be in the public interest and must relate to one of the matters listed in the ERA – for example, breach of a legal obligation, a criminal offence, health and safety being put at risk etc.
Building on the legislative framework, case law has established that there must be a link between the disclosure and the worker's treatment – i.e. whistleblowing protection will only "…be infringed if the protected disclosure materially influences (in the sense of being more than trivial influence) the employer’s treatment of the whistleblower” (Fecitt v NHS Manchester (2012)).
Mr Panayiotou, a police officer, had raised qualifying 'protected disclosures' under the ERA – namely, concerns regarding the attitude of certain officers to crimes involving race and domestic violence. Mr Panayiotou was found to be largely correct in his concerns, and the police force was grateful that they had been raised.
However, matters began to go awry when Mr Panayiotou refused to accept the outcome of the investigation into the concerns he had raised; he felt that his employer had not 'put right' the wrongs that he had identified. Mr Panayiotou then commenced what was described as a 'campaign' for the police force to take the action that he believed was appropriate. This went on for many years, and took up many hours of management time – it became apparent that Mr Panayiotou was unwilling to accept any result other than the one that he sought, and would pursue the matter to ensure his view prevailed.
Eventually, Mr Panayiotou was dismissed, ostensibly because he had an incompatible outside business interest. An employment tribunal found that this was, however, a 'device' to remove Mr Panayiotou from the organisation; the real reason that he was dismissed was the organisation's exasperation with Mr Panayiotou's seemingly endless grievances and concerns regarding the force's response to his whistleblowing disclosures. Did this mean that Mr Panayiotou was dismissed because of he had made protected disclosures and was, therefore, entitled to bring a whistleblowing claim?
An employment tribunal said, no, he was not entitled to bring such a claim. Although the tribunal found that the police force had treated Mr Panayiotou unfairly, it did not find that the force's actions were materially influenced by the protected disclosures – rather, it acted as it did out of frustration with Mr Panayiotou's subsequent actions. The tribunal felt that the fact of the disclosure had been overtaken by Mr Panayiotou's 'campaign' to vindicate himself and champion those about whom his grievances were raised. Therefore, because of the lack of a sufficiently close link between the concerns Mr Panayiotou had raised and his dismissal, his whistleblowing claim failed.
Mr Panayiotou appealed to the Employment Appeal Tribunal (EAT).
In Panayiotou v Kernaghan and the Police and Crime Commissioner for Hampshire, the EAT rejected Mr Panayiotou's appeal and upheld the original employment tribunal decision. The EAT said that there was no valid whistleblowing claim because the issues around
- the manner in which Mr Panayiotou's complaints were pursued
- the large amount of management time he absorbed and
- the finding that Mr Panayiotou had become "completely unmanageable"
(i.e. the reasons for Mr Panayiotou's dismissal) were entirely separate from the fact that Mr Panayiotou had made a protected disclosure.
The EAT went on to say that it is possible to draw a distinction between a protected disclosure itself and steps taken in relation to the information disclosed. But, in these circumstances, employment tribunals (and, by extension, employers) must ensure that the factors relied on in their treatment of a worker are genuinely separable [our emphasis] from the protected disclosure – and are, in fact, the reasons why the employer acted as it did.
What does this mean for me?
This decision provides welcome clarification that treatment which originates from, but which is entirely separate to, a protected disclosure may fall outside of whistleblowing legislation.
A note of caution should, however, be sounded: as many of our readers will be all too aware, workers who make protected disclosures sometimes do so in a manner which is perceived as objectionable or unreasonable. This is even more likely to be the case now that the requirement for protected disclosures to made in 'good faith' has been repealed. However, behaviour which is 'ordinary' unreasonableness - for example, using intemperate language or making inaccurate statements – would be treated as linked to the disclosure itself. In other words, tribunals will only be willing to separate the cause of an employee's treatment from the protected disclosure in the clearest cases.
That said, this remains a helpful decision for employers and we
have already made use of the EAT's guidance in a similar
whistleblowing case which we successfully defended last