It is rare that an employer wins its Tribunal case but still covers itself in so little glory as did Hampshire Police this month in its defence of a whistleblowing allegation brought by former policeman Mr Panayiotou.
Mr Panayiotou was a chap with a strong, not to say obsessive, sense of right and wrong. He regarded it as his duty not just to report alleged breaches of obligations by his colleagues, but then also to fight and fight until that complaint was investigated as he wished and led to the outcome he wished. Any failure by Hampshire Police to do as he wanted led to a further complaint and then another, until he had on the go some fifty grievances of one sort or another and had become “a one-man industry …. taking up huge amounts of management time” for the Police and through his relentless pursuit of his chosen outcome, made himself effectively “unmanageable”. In addition to this, found the Tribunal, due to his extended absence from work with mental health issues, there was “an exasperation that the Claimant had worked so little in the years he had been with [Hampshire Police] while seeking to be involved with family business while (mostly) being paid for (not) being a police officer”.
In normal circumstances an employee who is so sick that he is approved for ill-health retirement, as here, and who at the same time renders himself unmanageable by his own deeds could well be fairly dismissed. But that ignores the public interest disclosure context – how can it be that the good faith conduct of complaints, even if objectively beyond the point of common sense, is not connected with the making of the complaint in the first place? The Tribunal considered the complaint to be just that, i.e. context only – “Our conclusion is that the public interest disclosure was the genesis of the matters of treatment about which the claimant complains, but only in the sense ofif I had not taken the M5 and travelled on the A303 instead, I would not have had the car crash.” Pursuing that analogy perhaps beyond breaking point, the making of the complaints was the decision to take the M5, but the way in which they were conducted was the standard of driving which led to the crash.
Mr Panayiotou had behaved in a way “sufficient to try and to exhaust the patience of any organisation”, and it was that which was ultimately found to have been the basis for his dismissal, not the complaints themselves. The Tribunal and EAT also took into account Mr Panayiotou’s mental health complaint, but although the Tribunal considered that his relentless campaigning for his version of justice could well have been caused or exacerbated by his mental health difficulties, that disability still did not allow him to behave in such a way with impunity. He had clearly lost sight of the limits to the rights afforded to a whistleblower – not to be treated less favourably as a result, certainly, but also not to dictate the extent or even fact of any subsequent enquiry by the employer, nor the outcome nor the remedy.
This decision was a far closer-run thing for Hampshire Police than it needed to be. Perhaps exploiting the exclusion of police constables from the right to claim unfair dismissal, the Force treated Mr Panayiotou brusquely, exceptionally and, said the Tribunal, not entirely honestly. On any view it would have been unfair if only he had been able to claim it. However, while in other circumstances that would have been fertile ground for the drawing of an adverse inference against it, the evidence of just how painful Mr Panayiotou had been for the Police to deal with in connection with his disclosures was overwhelming, leaving no room for any other conclusion as to the motive for his dismissal.
The Employment Appeal Tribunal therefore confirmed that where the manner in which a public interest disclosure is made or pursued effectively overtakes the fact of its making, then an employer is entitled to act against the employee as a result. However, it should before doing so pay very careful heed to the unimproveable advice given by the EAT in Martin –v-Devonshires Solicitors in 2007, which said (key part underlined): “Of course such a line of argument is capable of abuse. Employees who bring complaints often do so in ways that are, viewed objectively, unreasonable. It would certainly be contrary to the policy of the anti-victimisation provisions if employers were able to take steps against employees simply because in making a complaint they had, say, used intemperate language or made inaccurate statements. An employer who purports to object to “ordinary” unreasonable behaviour of that kind should be treated as objecting to the complaint itself. We would expect Tribunals to be slow to recognise a distinction between the complaint and the way it is made, save in clear cases. But the fact that the distinction may be illegitimately made in some cases does not mean that it is wrong in principle”.