Jesudason v Alder Hey Children's NHS Foundation Trust [2020] EWCA Civ 73

Facts: 

A paediatric surgeon made complaints to his employer over how his department was run. He also went to the press, the General Medical Council and the Care Quality Commission. He entered into a compromise agreement under which he resigned from his position, withdrew a whistleblowing claim in the employment tribunal (ET) and made a contribution towards his employer's legal costs. The surgeon continued to make allegations of malpractice, including to the press and the Public Accounts Committee of the House of Commons. His employer denied his allegations in writing, stating that they had been investigated and were without foundation and that his actions weakened genuine whistleblowing. The surgeon lodged a fresh ET claim for whistleblowing, claiming that the Trust's correspondence was a detriment on the ground of his protected disclosures because it incorrectly stated that the allegations were wholly unsubstantiated.

Decision

The Court of Appeal held that the Trust had subjected the surgeon to a detriment. The key question was whether the detriment was done "on the ground that the worker has made a protected disclosure", which would enable the surgeon to bring a claim. The Court held that the Trust's motivation in sending the correspondence had not been retaliation against the surgeon for his earlier protected disclosures but to minimise the damage caused by the surgeon's disclosures to the media. This meant the Trust had not breached section 47B of the Employment Rights Act 1996 so the claim failed.

Comment

It is helpful that the Court made it clear that an employer is entitled to deny disclosures and limit damage to its own reputation caused by a whistleblower. However, employers need to think carefully when looking at what steps they can take in this situation. They should ensure that any statements made are accurate in order to avoid further litigation.