A recent Court of Appeal case considered whether an employer who seeks to defend their own reputation, can subject a whistle blower to a detriment when doing so.
Jesudason v Alder Hey Children’s NHS Foundation Trust
Mr Jesudason was a consultant paediatric surgeon of the NHS Trust that ran the Alder Hey Children’s Hospital. During his employment, tensions had risen with multiple colleagues, resulting in an unsuccessful group mediation process.
Following this, Mr Jesudason made a number of disclosures to the Trust’s HR department and on various platforms, including the national press, in regard to clinical misjudgement and an alleged improper treatment of a colleague which referenced confidential information from the mediation process. In response, the Trust requested that the Royal College of Surgeons (RCS) produce a report reviewing Mr Jesudason’s criticisms. The report gave the overall opinion that the care provided was adequate but made suggestions for improvement and found that the Trust had not managed Mr Jesudason’s whistleblowing affectively.
Mr Jesudason obtained a High Court injunction restraining the Trust from terminating his employment contract. However, it became evident at the High Court trial that Mr Jesudason had improperly provided confidential documents to national publication, Private Eye, resulting in his resignation and the discontinuing of the High Court proceedings.
Undeterred, Mr Jesudason continued to make disclosures about The Trust publicly and to governing bodies such as the Care Quality Commission. The Trust wrote letters in response to Mr Jesudason’s claims to the senior members of the governing bodies and internally to all consultants. It claimed that “…each of Mr Jesudason’s allegations have been thoroughly and independently investigated by different professional bodies on a number of occasions and found to be completely without foundation” and that Mr Jesudason was “…weakening genuine whistleblowing”.
Mr Jesudason brought an employment tribunal claim against the Trust alleging whistleblowing detriment and race discrimination. He claimed that sending the letters to third parties amounted to a detriment because they portrayed him in a negative light. The tribunal found that Mr Jesudason had made protected disclosures and therefore benefitted from whistleblower protection (although not in relation to most of his wider disclosures to the press).
The Tribunal found that Mr Jesudason had not suffered a detriment as a result of the Trust sending out the letters as the Trust was merely trying to defend its own reputation and that no reasonable worker could have viewed this as a detriment. The tribunal also dismissed the race discrimination complaint.
Mr Jesudason appealed to the EAT, who upheld the decision. He then appealed to the Court of Appeal.
The Court of Appeal found that the ET and EAT had made an error of law, insofar as the letters amounted to a detriment. The motive for the Trust sending the letters was irrelevant to that question.
The Court decided that there had clearly been a detriment to Mr Jesudason in the way the Trust framed the letters and their analysis was flawed.
Nevertheless, the Court of Appeal accepted that the detriment was not on the ground that Mr Jesudason had made a protected disclosure and so the appeal ultimately failed.
Employers should be cautious when ‘setting the record straight’ if an employee makes disclosures about malpractice outside the organisation. If those disclosures are protected and any published response is detrimental to the employee, it creates the risk of a whistleblowing claim from the employee. The employer in that circumstance would need to rely upon their own motives (with evidence) for issuing their response.
In this case, the Trust was able to show a genuine desire to protect their reputation; however, if in a similar case evidence emerged that there was any malice or a desire to ‘get back at’ the employee, the claim would be more likely to succeed.
If you have any queries in relation to whistleblowing or any other HR queries, please do not hesitate to contact our Employment team on 01228 552600 or 01524 548494.