Detriment for whistleblowing

20th March 2020

Detriment for whistleblowing

Employees and workers have a right not to be subjected to any detriment by any act, or deliberate failure to act, by their employer on the ground that they have made a protected disclosure (‘blown the whistle’). In Jesudason v Alder Hey Children’s NHS Foundation Trust, the Court of Appeal considered whether the Trust’s attempts to defend its position amounted to a detriment.

Mr Jesudason was employed as a Consultant Surgeon. He made disclosures to numerous bodies, including to the Care Quality Commission and the HR department. His allegations centred on failings in the running of his department. He also made disclosures to Private Eye magazine, that were inappropriate. He resigned, and entered into a settlement agreement. Following his resignation, Mr Jesudason continued to make allegations about malpractice. In response to his allegations, the Trust sent letters to third parties, in which it attempted to set the record straight. Notwithstanding that some of his allegations had been upheld by an independent report, the Trust said that the allegations had been investigated and found to be entirely without foundation. He then commenced employment tribunal proceedings alleging he had suffered detriments due to whistleblowing. He alleged that the letters gave rise to a detriment..

The employment tribunal held that the letters could not amount to a detriment, as the Trust was merely defending its position, and the EAT agreed. The Court of Appeal, however said they were technically wrong. Negative comments made in a letter which was intended to set the record straight, could amount to a detriment. It is irrelevant what the employer’s motive was, if the result of the negative comments is detrimental to the employee. The Court of Appeal did however agree with the employment tribunal and the EAT on the issue of causation. The claim failed because the employee’s protected disclosures did not cause the detrimental treatment (the letters). The Trust made the detrimental comments in order to try to limit the damage arising from the employee’s public disclosure of potentially damaging information. The Trust didn’t make the comments because he blew the whistle.

Whilst this case demonstrates that an employer may be able to justify making negative comments about an employee or worker, in the course of trying to defend its position, it’s important to handle whistleblowing cases carefully as they can be rather tricky.

For advice regarding whistleblowing, contact Marie Allen on 01473 298126 or email marie.allen@gotelee.co.uk.

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