Whistleblowing - Court of Appeal holds that an employer publically denying the truth of a protected disclosure, did not subject the employee to detriment

Jesudason v Alder Hey Children’s NHS Foundation Trust

The Court of Appeal (‘COA’) considered the scope of the right to not be subjected to detriment by an employer on the grounds of making a protected disclosure and held that an employer’s public rebuttal of an employee’s allegation, did not lead to liability under whistleblowing law.

Facts

The Claimant worked for the Respondent as a surgeon and made a number of highly critical disclosures, alleging clinical misjudgements and serious failures and wrongdoings, to various parties including the media and regulatory bodies. The Claimant resigned and continued alleging malpracticeby the Respondent. The Respondent commissioned an independent report which upheld some, but not all, of the Claimant’s allegations. They then defended their position through a number of letters which stated that the Claimant’s allegations had been investigated and found to be false. Thus failing to recognise the recommendations the report made.

The Claimant brought claims for whistleblowing detriment, including in relation to the correspondence, and race discrimination. The Employment Tribunal (‘ET’) and Employment Appeals Tribunal (‘EAT’) dismissed his claims and the Claimant appealed to the CoA.

Outcome

NThe CoA reversed the tribunal finding that the correspondence did not amount to a detriment as the Respondent was trying to defend its reputation and that this could not reasonably be viewed as causing a detriment. It held that this analysis was flawed as the Respondent’s purpose is irrelevant to the question of whether a detriment was suffered and concerned with the later stage of deciding if the detriment was by reason of the protected disclosures. The Court thereafter determined that the Claimant had clearly suffered a detriment though the letters.

It then moved to the question of causation and held that despite the Claimant suffering a detriment, this did not arise from his protected disclosures. The CoA highlighted that an employer is allowed to respond to allegations, including protected disclosures, in order to rebut allegations against them. Further, if this rebuttal ‘also contains misleading statements which constitute a detriment to the worker, it does not follow that the reason for making those statements is the fact that the worker has made the protected disclosure’. It was concluded that the Respondent’s objective was to minimise the effect of potentially damaging and misleading information that the Claimant had shared publicly. The correspondence was therefore not motivated by the Claimant’s whistleblowing.

Implications for Employers

This decision confirms that employers may not be liable under whistleblowing legislation for attempting to set the record straight by engaging in damage limitation, following protected disclosures made outside of the organisation. This seems the case even if the employee suffers a detriment in the process. All whistleblowing claims are however of course fact dependent and employers should seek legal advice on the legal requirements of handling such a situation.

The law and practice referred to in this article or webinar has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

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