Settlement agreements and whistleblowing

People who make protected disclosures or ‘whistle blowers’ frequently make the headlines. Over recent months there have been a number of notable cases in the NHS for example. A recent case (Panayiotou v Chief Constable Kernaghan) has demonstrated some interesting points for whistle blowers to consider.

Mr Panayiotou was a policeman for Hampshire Constabulary. He brought his claim to the Tribunal as he felt that he had been dismissed because he had made a number of protected disclosures in the course of his employment. His employer argued that he was dismissed due to his long term absence. He argued that the poor treatment or ‘detriment’ that he had received at the hands of his employer was a direct result of the protected disclosures that he had made. The Claimant had made a number of protected disclosures concerning the attitude of his colleagues towards certain racial groups. Although his concerns, after investigations by his employer, appeared to be well founded, he was not satisfied with the action taken by the force and proceeded to take matters into his own hands by making further complaints, sending numerous letters and taking a lot of management time. He ultimately became unmanageable.

In respect of the poor treatment of the Claimant, his employer refused to agree to his request for involvement in his wife’s business. During a long period of sickness, he was arrested, subject to surveillance and kept in the dark by his employer and this was all related to his alleged involvement in his wife’s business without permission whilst still receiving pay. The Tribunal was very critical of the overall approach of his employer in these events and particularly the costs and man power involved in this operation. The Claimant was eventually dismissed as a result of this undercover operation as his interests in his wife’s business were deemed to be incompatible with his role as a police officer.

The Claimant’s claim was unsuccessful. The Tribunal decided that, whilst it was clear that his employer had treated him very badly at times, it was his behaviour following disclosures, rather than the fact that he had made a protected disclosure in the first place, along with his lengthy absence on health grounds, which lead to his dismissal. In other words, it was the actions of the Claimant after he had made the protected disclosures which lead his employer to be hostile towards him.

On appeal the Employment Appeal Tribunal upheld the decision of the Tribunal at first instance. The Claimant’s appeal was therefore unsuccessful. This case demonstrates that even if a disclosure does qualify an employee to be considered a whistle blower, it is still necessary for them to ensure that they behave in an appropriate way following their disclosure. There is a clear limit to the level of protection afforded to a whistle blower. One thing that makes this case unique is that police officers are restricted from bringing a standard unfair dismissal claim. If the same facts were before the Tribunal in an unfair dismissal claim, it is likely that the Tribunal would have found in the Claimant’s favour on that aspect.

Settlement agreements are frequently offered at various stages in these sorts of cases and the above is an example of why they should always be considered.

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