The Court of Appeal investigated this in Beatt v Croydon Health Services NHS Trust and held that it did not matter. 

Beatt, a cardiologist, was involved in an invasive procedure that led to a patient’s death. Mid-way through the day of the operation, his most trusted nurse, Sister Jones, was suspended. As far as Beatt was concerned, the timing of the suspension was irresponsible and the nurse’s absence from theatre contributed to the patient’s death. Beatt made various disclosures concerning staff levels and patient safety in general, together with his concerns relating to this specific incident.

A report by the NHS Trust concluded the allegations were ‘entirely without merit and…gratuitous in nature’, motivated by Beatt’s antagonism to the department’s assistant director. Beatt was suspended and subsequently dismissed for gross misconduct. Beatt claimed automatic unfair dismissal for making protected disclosures.

The principle point of interest for the appeal was the NHS Trust’s argument that Beatt’s disclosures weren’t protected as they believed they were made in bad faith, meaning the dismissal shouldn’t be held as unfair. The Court of Appeal considered this irrelevant. The question under s103A of the Employment Rights Act 1996 was an objective one to be determined by the ET. To do otherwise would in many cases deprive s103A of its intended protection. As the ET found objectively that the disclosures were protected, and that the principal reason for the dismissal was making those disclosures, the Court of Appeal upheld the ET’s finding of automatic unfair dismissal.

Employers will need to be careful if they find themselves in dispute with employees who have made disclosures. An employer cannot rely on their own belief that the disclosure wasn’t protected and will need to bear in mind the objective test the ET will apply.