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Whistleblowing - Can Denying the Truth of a Protected Disclosure Amount to a Detriment?

As you may be aware a worker should not be subjected to any detriment by their employer on the grounds that they have made a protected disclosure. In the case of Jesudason v Alder Hey Children's NHS Foundation Trust [2020] the Court of Appeal considered whether an employer setting the record straight in defending its position following a disclosure could amount to a detriment.

In this case, the Claimant was a paediatric surgeon and made a number of disclosures which he believed amounted to fundamental failings of his employer (the “Trust”). He also contacted the media which led to an article critical of the Trust appearing in a national newspaper. At the Trust's request, the Royal College of Surgeons (RCS) produced a report reviewing the Claimant's criticisms. The report upheld some of his allegations and it was critical of the Trust’s defensive response.

The Claimant subsequently brought an employment tribunal claim for whistleblowing detriment relying on post-termination detriments which he alleged he suffered as a result of protected disclosures including disclosures made after his resignation. The detriments included the Trust’s letters to third parties, setting out the Trust's position. Several of the letters stated 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", this was despite the RCS report had identifying areas of concern. Some letters also said that the Claimant was "weakening genuine whistleblowing".

The first instance tribunal and the Employment Appeal Tribunal decided that these letters were not detriments because the Trust was defending its position and this could not reasonably be viewed as causing a detriment. However, the Court of Appeal disagreed with this analysis stating that a detrimental observation about a whistleblower might be made in a letter whose purpose was to put the employer's side of the story. It did not cease to be a detriment because of the employer's purpose or motive. Although, it held that the purpose of the letter is relevant when determining causation and whether the detriment was on the grounds that a protected disclosure had been made. The Court of appeal determined that in this case there had clearly been a detriment to the Claimant in the way in which the letters were framed.

The Court of Appeal subsequently addressed the issue of causation holding that the detriments were not on the grounds of any protected disclosures. The Court of Appeal commented that this was an unusual case as the alleged detriments arose out of communications responding to the Claimant’s disclosures to third parties. The Court held that even though the disclosures were protected the Trust was obviously entitled to respond to them in order to rebut what has been alleged and to put their side of the case, even robustly. In reaching its decision, the Court held that the tribunal had in substance found that the Trust's motivation for sending the letters had been the same as the motivation for claiming, albeit falsely, that the claimant's criticisms had no substance. The reason had been to minimise the effect of the potentially damaging and partly misleading information that the Claimant had chosen to put in the public domain such that the detriments were not on the grounds of any protected disclosures.

This case highlights the difficulties individuals may face in demonstrating causation in a whistleblowing case and that where a whistleblower has taken the matter outside the organisation, by going to the media or regulatory bodies, the employer will not necessarily be liable under the whistleblowing legislation if it responds attempting to set the record straight and as a consequence causes the employee a detriment.

This bulletin is for general guidance only and should not be used for any other purpose. It does not constitute, and should not be relied upon as, legal advice.

JMW Solicitors is a Limited Liability Partnership.

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