Was it fair to dismiss a whistle blowing employee, a police officer, who was making disclosures regarding his colleagues’ treatment of victims?

Yes, where the employee’s behaviour in raising the disclosures – rather than the disclosures themselves – was the reason for the dismissal, says the Employment Appeal Tribunal in a recent decision.

Background

In the case of Panayiotou v Kemaghan, Mr Panayiotou, a police officer, had conducted a campaign at work, trying to make good the wrongs he had identified in his colleagues’ treatment of victims.

Mr Panayiotou was eventually dismissed, purportedly because he had an incompatible outside business interest. However, the Tribunal, and the EAT, found that this was merely a ‘device’, and not the real reason for the termination.

The Tribunal found that the reason for the termination was not the protected disclosures he was making. The real reason for the termination was the employer’s increasing frustration at the campaign that was being waged by Mr Panayiotou.

Implications for businesses

This decision shows that it is possible to distinguish the protected disclosure itself from the manner in which it is being made. Dismissals on the basis of the manner in which a protected disclosure is made could well be fair.

Arguments along these lines will be very useful to employers defending whistle blowing claims

This will particularly be the case under the new whistle blowing legislation, which has no requirement that the disclosures be made in ‘good faith’, and opens the way for workers to bring claims even where there have been malicious disclosures. In these cases it could well be legitimate for employers to argue that the real reason for the dismissal was the manner in which the disclosure was made (malice) rather than the disclosures themselves.

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