Beatt v Croydon Health Services NHS Trust [2017] EWCA Civ 401

Mark: The key lesson from this particular case is that it's not within HR's gift to determine whether or not something is a genuine protected disclosure as set out in the statute. There are six categories under the original legislation that say, "This is a protected disclosure."

What happens if a worker makes a complaint and effectively labels it as whistleblowing? It's not within the gift of HR, for example, to say, "No, we're going to treat that as a run-of-the-mill grievance. We don't believe it is a protected category." The court made it very, very clear. The Court of Appeal made it very clear that it's the job of the court to determine whether or not the subject matter at the heart of the whistleblowing complaint is a protected disclosure. It's not for the employer to categorise one way or the other.

Again, as we said, if the employee or the worker presents with a whistleblowing complaint, you should take it at face value and let the courts decide, not the HR department to say, "No, you've been confused here. That's not really a whistleblowing complaint. It's just a grievance."

Scott: It's not a very practical thing, though, for employers because it's not dissimilar to TUPE. It's only a tribunal that can determine whether it was actually a transfer. Employees don't know whether they're covered and protected by TUPE protections. Effectively, the employee doesn't entirely know whether they're protected subject to the fact that they have a genuine belief, but there must be some situations where it's so clearly not . . .

Mark: No indeed.

Scott: …a whistleblowing thing.

Mark: And similarly, you're going to have situations where a grievance has effectively a crossover between the whistleblowing complaint and a run-of-the-mill grievance, and the question then is, "Should HR extract the relational component, for example, in a grievance and the subject matter at the core of the grievance, which is a whistleblowing complaint, and treat them in a sort of twin-track approach?"

Whistleblowing will cut across discipline. It will cut across grievance, and it's that interaction and that cross-fertilisation, if you like, between the policies that needs the focal attention, and that's clearly about HR making sure that employees know the difference between a standard grievance and a whistleblowing complaint.

Scott: Now we've had a question in here on the chat box. Can HR challenge the individual's assertion that it is a whistleblowing complaint at the point the complaint is made? That's not dissimilar . . .

Mark: No, it's not.

Scott: . . . to the legislation which protects people who are enforcing statutory rights. They say, "Well, you can't get rid of me. It's a health and safety complaint because the toilets are dirty," or whatever. It does cause problems.

Mark: It does cause problems.

Scott: But you seem to be saying that if somebody says it's whistleblowing, unless it's really blatantly obviously not and it's just a smokescreen, you have to take it at face value because the courts will rap you over the knuckles and say, "You're not the person who determines whistleblowing," or, if it were a health case, "You're not the one that determines whether somebody's fit. You need a doctor's advice." In this case here, it's almost like, "Go and get legal advice because it's too dangerous and see whether they think it’s really whistleblowing."

Mark: Yeah, certainly, that is a problem. There's no doubt about it. There will be overlaps between ordinary grievances and whistleblowing contexts. So an employer needs to be very, very careful about challenging the authenticity, if you like, of a whistleblowing complaint and the belief that they think it's a run-of-the-mill grievance.

If it presents as a whistleblowing complaint, I think the best thing to do is treat it at face value as a whistleblowing complaint provided you have a whistleblowing policy that pays due regard to your grievance and discipline procedures, etc., so that in the event that it does go to tribunal, you can say, "We treated it as this, but the reason for the treatment that the employee suffered was not as a result of making a protected disclosure. It was something completely different."

Scott: Yeah, because ultimately, if it is a protected disclosure, all those other changes apply.

Mark: That's right.

Scott: And the employer is held vicariously liable for not protecting the employee who might be harassed who has allegedly made a whistleblowing complaint.

Mark: That's right.

Scott: There are different categories.

Mark: That's right.