In Panayiotou v Kernaghan & Anor UKEAT/0436/13/RN the Employment Appeal Tribunal deliberated upon whether the reason for a dismissal is a complaint or, alternatively, whether the manner in which the complaint was made. The EAT found that the reason for the dismissal was the manner in which Mr Panayiotou had made his complaints (rather than the subject matter of the complaint itself) and that his dismissal was not therefore automatically unfair.
Mr Panayiotou joined Hampshire Police Force in 2000 and was employed by the organisation until 2012. At some point between 2000 and 2002 Mr Panayiotou submitted a grievance to senior police officers at the Hampshire Police Force concerning the attitude of police of particular police officers in respect of the treatment of race and the treatment of rape, child abuse, and domestic violence. Mr Panayiotou’s complaints were substantially upheld. However, Mr Panayiotou was not satisfied with the outcome in respect of a number of his complaints and began to complain for an outcome which he believed was more appropriate. When the police force did not take any action Mr Panayiotou believed that the matter was being covered up and sought to obtain redress from alternative representative bodies without success. Mr Panayiotou therefore began to believe that these representative bodies were being ‘bought off’ or warned off from assisting him.
A number of incidents then occurred: from October 2006 the police force refused to grant Mr Panayiotou’s application for an alternative business licence to allow him to be involved in his wife’s businesses. This application had previously been granted to Mr Panayiotou. Further, on October 2006 Mr Panayiotou was at home on sick leave when six officers arrived at his residence to arrest him on allegations that he was receiving sick pay whilst working without authorisation in his wife’s business.
Then, in 2007, surveillance of Mr Panayiotou was approved by the police force and two officers, DC Plummer and DC Wright (about whom Mr Panayiotou had made complaints in 2006), undertook surveillance of Mr Mr Panayiotou’s wife’s market stall in their own time in order to determine whether he was working in his wife’s business. The viewed was (erroneously) formed that Mr Panyiotou was carrying out a business in his own time and it was recommended that Mr Panyiotou be dismissed under regulation 7 of the Police Regulations 2003, which allowed a dismissal on the basis that a police officer had an incompatible business interest. This regulation had not previously been used by any police force and was conducted ‘in secret’, without Mr Panayiotou being allowed to put his case forward, and without a right of appeal.
Subsequent to his dismissal Mr Panayiotou brought an Employment Tribunal claim for automatic unfair dismissal under s.103 Employment Rights Act 1996 (that his dismissal was unfair because he had been dismissed wholly or principally because of his protected disclosures, also known as “whistleblowing”).
The Employment Tribunal was critical of Hampshire Police Force’s actions in rejecting Mr Panayiotou’s application in about 2006 to work in his wife’s business, and also criticised the police force for placing him under surveillance in 2006 and for dismissing him under regulation 7 of the Police Regulations 2003. However, the Employment Tribunal rejected Mr Mr Panayiotou’s claim for automatic unfair dismissal, holding that the reason for his dismissal was not his protected disclosures but the manner in which these had been made, as well as the exasperation of the police force with the amount of paid sick leave that he had taken while seeking to be involved with the family businesses. The Tribunal concluded that “…the actions of the Claimant were sufficient to try and exhaust the patience of any organisation…”.
Mr Panayiotou appealed the judgment of the Employment Tribunal. The Employment Appeal Tribunal, chaired by The Honorable Mr Justice Lewis, dismissed Mr Panayiotou’s appeal and held that the Tribunal was entitled to (1) conclude that the manner in which Mr Panayiotou had pursued his complaints (as well as the other features) were separable from the fact that he had made protected disclosures; and (2) that the employer had acted to dismiss Mr Panayiotou in reliance on the manner in which he had pursued his complaints, as well as other factors.
What does this mean for me?
In Panayiotou the Mr Panayiotou’s actions, in the Tribunal’s view, amounted to a ‘campaign’ against his employer and that the fact and nature of that campaign may have been sufficient in and of itself to justify his dismissal, notwithstanding the criticisms that the Tribunal made of the process utilised in dismissing Mr Panayiotou. In order to avoid the consequences in Panayiotou it is important for ‘whistleblowers’ to ensure that their complaints are put cogently and reasonably to the appropriate persons and that their actions in pursuing those complaints are necessary, proportionate, and reasonable.
Why is this case significant?
This was the first case in which the manner of a protected disclosure was separated from the fact and content of the disclosure, and can be used by individuals and organisations as a potential line of defence against protected disclosure claims in the Employment Tribunal if the relevant disclosures are made in an unreasonable manner.
The Employment Appeal Tribunal of the judgment in Panayiotou v Kernaghan & Anor can be found on Bailii here.