Case update (3): Whistleblowing – when is it fair to dismiss?

Summary: Can an employer fairly dismiss an employee who has made protected disclosures, where the principal reason for the dismissal is connected to the employee’s behaviour in his continued pursuit of his claims?

Yes, says the EAT in Panayiotou v Kernaghan available here.

Facts: Mr Panayiotou was a police officer. He made disclosures to his employer relating to other officers` treatment of victims. The resulting investigation largely upheld his concerns. However, Mr Panayiotou believed that nothing had been learned from the complaints he had made and the various issues had not been rectified. He continued to campaign to make good the wrongs he’d identified. This took up a lot of his time and made him increasingly difficult and time-consuming to manage. Eventually he was dismissed, on the basis that he had an incompatible outside business interest i.e. his campaign.

Mr Panayiotou brought a claim under the whistleblowing legislation. The EAT upheld the Tribunal’s decision to dismiss Mr Panayiotou’s claim. The Tribunal was critical of the way Mr Panayiotou had been treated. However, they found that Mr Panayiotou`s disclosures were not the reason for the mistreatment or his dismissal. The Tribunal found that his treatment was caused by his campaign and his employer`s escalating frustration. These events were related to, but distinct from, the disclosures themselves.

Implications: This is an encouraging decision for employers. However, it is worth remembering that these cases are fact specific and therefore employers should be very cautious before dismissing an employee for reasons connected with their whistleblowing. Employers should always keep an open mind in relation to the complaint raised and not dismiss it, use dismissal as a last resort and follow a fair process – including very carefully considering the reason for dismissal and documenting this.