Case Law Update: Refuting a Whistleblower

Ben McCarthy

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27 Feb 2020

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The Court of Appeal has ruled that an organisation was not liable for the damage to a whistle blower’s reputation as a result of them labelling his accusations as ‘without foundation’.

If you want a quick summary of the case and the main takeaway points, you can skip ahead to our Too Long; Didn't Read section here.

Jesudason v Alder Hey Children’s Hospital NHS Foundation Trust

The law

The Employment Rights Act 1996 states that you cannot subject workers to any detriment because they’ve made a protected disclosure. Or, as it’s more commonly known, ‘blown the whistle’.

But what is a detriment? Well, the law does not clearly define this. Historically, it’s left up to tribunals to assess whether the employee’s treatment could be considered a detriment.

A good example is the case of Shamoon v Chief Constable of the Royal Ulster Constabulary. (Fantastic name, we know). In this case it was found that a worker is subjected to a detriment if they’ve been disadvantaged in the circumstances in which they have to work.

Workers can also bring a claim for detriment even after their employment has ended. For example, they could argue that receiving a bad reference, as a result of blowing the whistle against a former employer, was a detriment.

Background to the case

In this case, the claimant made a number of disclosures to the NHS Trust he worked for. He claimed they’d made clinical misjudgements.

He also contacted the media, providing them with confidential information concerning the Trust. This resulted in an article that was critical of the Trust appearing in a national newspaper.

The Trust responded by producing a report looking into the situation. They concluded that that general care didn’t fall below an acceptable standard. However, they did make suggestions for improvements.

This did little to improve relations with the claimant. However, the following year he made further disclosures to regulatory body, the Care Quality Commission (CQC).

The relationship with the Trust and the claimant broke down, and they sought to end his employment. In response, the claimant sought an injunction from the High Court preventing them from doing this.

He did later enter into a compromise agreement with the Trust and agreed to leave his role. However, he then went on to bring numerous claims to the employment tribunal (ET). He argued that he’d been subjected to a detriment as a result of making protected disclosures.

His claim rested on one particular allegation. He asserted that the Trust had distributed letters to third parties regarding the ongoing dispute. The letters served to damage his reputation.

Why? Because the letters labelled his concerns to be ‘without foundation’. This was despite their own report suggesting areas for improvement. They also claimed his actions ‘weakened general whistleblowing’.

What did the employment tribunal say?

The tribunal first looked at the disclosures made by the claimant. They found that his disclosure of information to the media was not protected under whistleblowing law. His actions were not considered reasonable for the purposes of wider disclosure. 

However, they did agree that his disclosures to the Trust, and to the CQC, were protected.

They then considered if the actions of the Trust in sending the letters could be seen as amounting to a detriment. Ultimately, they found this was not the case. They outlined that no reasonable employee would have considered these comments as causing a detriment. The Trust was simply trying to defend its position.

They had made false statements. However, this was an effort to minimise the potentially damaging and partially misleading information claimant had put in the public domain.

The claimant appealed to the Employment Appeal Tribunal (EAT) who dismissed his appeal. They agreed with the reasoning of the tribunal. He appealed again to the Court of Appeal.

What did the Court of Appeal say?

The Court unanimously dismissed his appeal.

They did take issue with the tribunal’s conclusion, finding that the claimant had ‘clearly’ been subjected to a detriment. The purpose of the letters was to tell the Trust’s side of the story. But the purpose or motive behind them didn’t matter as a detrimental observation about the whistle blower was still made.

However, the Court found that the detriments were not the result of the claimant’s stated protected disclosures to the Trust. They had arisen out of communications in response to the claimant’s disclosures to third-parties, such as the CQC and the media.

They explained that the Trust was within its rights to defend itself and rebut public allegations against them. This was the case even if the allegations were a result of a protected disclosure.

If their rebuttal had contained misleading statements that amounted to a detriment, this did not mean that the reason for making these statements was directly linked to the claimant making a protected disclosure.

Takeaway points

This case seems to confirm a couple of things:

First, is that when a protected disclosure is made to a regulatory body or the media, employers have the right to respond.

Second, employers can try and set the record straight even if it could harm the employee in the process.

For example, the organisation may believe the employee to be a troublemaker. This is especially true if they go to the media with their accusations.

That said, employers should always proceed with care in these situations. Whistleblowing is a complex area and these situations will always be decided on a case-by-case basis. 

TL;DR

An employee of an NHS Trust claimed they’d made clinical misjudgements. He contacted the media and provided them with confidential information. The Trust refuted the employee’s claims, but did suggest improvements. The following year the same employee made further disclosures to the CQC.

There was some back and forth following this. However, the employee ultimately brought a claim against the trust. He claimed that the Trust had damaged his reputation as a result of him making protected disclosures.

The first thing the ET looked into was whether his disclosures were protected. They found his disclosures to the media weren’t, but the ones to the CQC were. Next, they looked into whether the employee was put at a detriment. They found that he wasn’t, as the Trust was reasonably trying to defend itself.

The EAT upheld the ruling of the ET, so he went to the COA.

They dismissed his appeal. However, they did find that the employee was subject to a detriment. Ultimately, they found that the Trust had the right to defend itself even if the allegations were a result of a protected disclosure.

This is potentially good news for employers dealing with troublemaking employees. However, these situations are judged on a case-to-case basis. So always proceed with caution.

Expert support

Worried how this latest ruling might impact your business? Dealing with a difficult HR situation and not sure where to turn? Speak to a Croner expert today for support and guidance on 01455 858 132.

About the Author

Ben McCarthy works as a content writer for Croner producing commentary and guidance on employment law and key HR developments. Coming from an extensive legal background, Ben regularly constructs key training materials for clients and advisers, and provides daily contributions to national publications.

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