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Whistleblowing: Dealing with the Campaigner

Martin Fodder 
Whatever the reasons for the phenomenon
may be, it seems to be the case that the public sector employer is more likely than
its private sector counterpart to find itself with an employee within their
organisation who has assumed the mantle of a campaigner against wrongdoing (or
perceived wrongdoing). Management of that employee becomes fraught with
difficulties as anything done vis a vis the employee, which either is or is
perceived to be detrimental, is regarded by the employee as retaliation for the
employee’s expression of concern and continuing stand. Earlier this year the
EAT heard the case of Panayiotou v Chief Constable Kernaghan and
another
[2014] UKEAT 0436/13/1604. The EAT dismissed an appeal by a former
police constable, Mr Panayiotou, against the decision of the ET rejecting
Panayiotou’s claim that he had been victimised and dismissed for making
protected disclosures. The facts of the case are complicated but the
“headlines” are striking. The result is an important one in defining the limits
of protection for whistleblowers.

Whilst
police officers do not have the right to complain that they have been “ordinarily”
unfairly dismissed contrary to s 94 (1) of the ERA, s 43KA of the ERA extends to persons who
hold the office of constable the protections in s 47B, 48 and 103A of the 1996
Act. It provides that for the purposes
of those sections the constable shall be treated as an employee employed by the
chief officer of police under a contract of employment giving police officers
the right not to be dismissed if the reason or principal reason is that they
made a protected disclosure (s.103A) and not to be subjected to any detriment
on the ground that they have made a protected disclosure (s47B & s 48).

Panayiotou
had joined the Hampshire Police Force in 2000 and he was posted to the Isle of
Wight where his wife established hospitality businesses. Panayiotou applied to
the force for permission to be associated with these businesses and this was
granted. Subsequently he made
what the ET found to be protected disclosures to senior officers concerning the
attitude of certain other officers in handling various kinds of violent crime
and the victims of those crimes. An internal investigation concluded that
Panayiotou was largely correct in his concerns. The
ET found that Panayiotou
was not happy with the action – or lack of action – taken by the force
regarding the concerns that he had raised. This led him to campaign for the
force to take the actions that he believed appropriate. At the same time he became ill and went on
extended sick leave. The ET found that the police force – or officers within
the force – had then:

  • declined
    to consider applications for permission for Mr Panayiotou to be involved in his wife’s
    businesses and that this had been done (at least on one occasion) for reasons
    which were “not genuine”;
  • arrested
    Panayiotou, whilst he was at home
    on sick leave, the alleged offence being that he was receiving sick pay whilst
    working without authorisation in his wife’s business;
  • put
    Panayiotou under covert surveillance to establish whether or not he was working in his wife’s business;
  • decided
    to recommend that Panayiotou be dismissed on the basis of regulation 7 of the Police Regulations 2003; the ET found
    this was a “device to terminate [Panayiotou’s] services in a manner that
    would preclude challenge outside the Force”.

The ET said these things caused it “great
concern”. Its conclusion was that Panayiotou’s
protected disclosure(s) were “the genesis of the matters of treatment about
which [he] complained.”

However that conclusion by the ET did
not avail Mr Panayiotou because the ET went on to hold that the protected disclosures
were the genesis “…only in the sense of ’If I had not taken the M5 and
travelled on the A303 instead I would not have had the car crash’”. In other words the adverse treatment would
not have happened but for the protected disclosures, but they were not its effective
cause. It was, continued the ET, the actions taken by Panayiotou subsequent to the disclosures which
were the reason why the Force was hostile to him. This reason was coupled with
exasperation that he had worked so little in the years he had been with them- whilst
seeking to be involved with family businesses and whilst (mostly) being paid for
(not) being a police officer. The ET said that Panayiotou “had become a one-man industry for the Force, taking
up huge amounts of management time, and it was clear from the medical reports
that he was not able to function as a detective sergeant”. The disclosures had been “overtaken by the
campaign of the discloser to vindicate himself and champion those about whom
those grievances were raised” and thus the
actions of the Force were “in no sense whatsoever connected with the public
interest disclosures.”

Case law establishes that section 47B
will be infringed if the protected disclosure materially influences (in the
sense of being more than a trivial influence) the employer’s treatment of the
whistleblower (NHS Manchester v Fecitt [2011] EWCA Civ 1190). However the EAT
and the Court of Appeal have also drawn a distinction between a dismissal or
detriment inflicted because of the making of a protected disclosure and a
dismissal or detriment inflicted by the employer:

  • because
    of something collateral to or “separable from” but associated with the making of a disclosure (Hossack
    v Kettering BC
    [2002] EWCA Civ 886, Evans
    v Bolton School
    [2006] EWCA Civ 1653) or
  • to
    resolve a dysfunctional situation which has arisen in the wake of a protected
    disclosure (Fecitt, Vivian v Bournemouth BC [2011]
    UKEAT 0254/10/0605).

Panayiotou’s
case shows the extent to which these distinctions can be deployed in defending
a detriment or dismissal claim. In
the EAT it was contended for Mr Panayiotou that it was not permissible for the ET
to separate his campaign to right the wrongs from the fact that he had made
protected disclosures. The EAT disagreed.
Section 47B ERA permitted a distinction between the making of
protected disclosures and the way in which an employee goes about the process
of dealing with protected disclosures. Reference was made to the “similar conclusion” in Martin v Devonshires Solicitors UKEAT/0086/10 where the employee’s complaints of sex
discrimination were held to be properly and genuinely separable from the fact
that the complaints involved false allegations which were serious, that they
were repeated and that the employee refused to accept that they were untrue and
had a mental condition which was likely to lead to unacceptably disruptive
conduct in future. Disagreeing with what had been suggested in the
subsequent victimisation case of Woodhouse
v West North West Homes Leeds Ltd 
UKEAT/0007/12 the
EAT declined to accept that the circumstances had to be “exceptional” for such
a distinction to be drawn. The decision of the ET was upheld.

The facts of Woodhouse were different from those of Panayiotou but it might be thought that Mr Panayiotou’s
case was the rather stronger one. Mr Woodhouse succeeded in the EAT notwithstanding
the findings by the ET that he had repeatedly made grievances which in the “vast
majority of cases, apart from the first two grievances” were “substantially
without any significant evidential basis”. And “each time Mr Woodhouse’s
grievances were resolved, it fuelled his belief (accepted by all parties as
sincere), that managers and the organisation itself were racist in treating him
in that way”. It was that conviction
of Mr Woodhouse which led his employer to decide that his loss of trust and
confidence in them meant that his employment could no longer be continued
because continuing his employment would result, at some future date, in further
allegations, themselves damaging and taking up considerable time.

In
overview the main differences between Mr Woodhouse’s case and that of Mr Panayiotou
seem to be that the former’s concerns were, in the judgment of the ET (largely) unfounded and the employer’s conduct
towards the latter was, if anything, rather more egregious. It is worth noting that neither Woodhouse nor Panayiotou appears to
have been accused of want of good faith (though following the reforms to the
ERA last year it is no longer necessary for a whistleblower to act in good
faith to be protected).

More
generally, where does the result in Mr Panayiotou’s case put the whistleblower?
Does the protection only extend to a single disclosure of information? Or
perhaps two or three repetitions of it? If the employer appears to take no
action – or no satisfactory action – must the whistleblower just accept that
situation because to do otherwise is to risk being categorised as a timewaster
whose dismissal is justified? Will employers find it easier to establish that
the dismissal of the whistleblower was for a “collateral” reason? Might the new
requirement that a disclosure be “made in the public interest” work to deprive
those who repeat their disclosures within an employing organisation of
protection because, notwithstanding the fact that their disclosures relate to a
matter of public interest, it is not “in the public interest” that the employer
has to revisit them? Panayiotou is certainly a case for
all employers- particularly public authorities- to be aware of.

The
on-going updating supplement to “Whistleblowing, the Law and Practice” will report further developments on
this and other aspects of the rapidly developing law on whistleblowing. Click here for the most recent update.

If you have any questions please contact mfodder@littletonchambers.co.uk

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