The claimant was an extremely distinguished paediatric surgeon specialising in surgery for birth defects and children’s tumours. He was an honorary consultant working in the department of paediatric surgery (“DPS”) at the defendant NHS children’s health trust (“the trust”) from 2006 until his resignation in 2012. He had been highly critical both of the trust management and of his consultant colleagues in the DPS. Between 2009 and 2014 he made a series of allegations to the trust, various regulatory bodies and certain third parties, including organs of the media, in which he identified what he claimed were fundamental failings in the operation of the DPS. The matters raised included very serious allegations of professional incompetence; the use of improper medical practices; deliberate attempts to mislead the legal process; and attempts to cover up wrongdoing and to gag the claimant himself from pursuing his complaints. After he had made these complaints, the trust’s chairman, chief executive and medical director sent several letters to third parties in 2013, including to the chair of the Public Accounts Committee, the chair of the Care Quality Commission, a member of Parliament, and the chair of the British Medical Association. The letters set out the circumstances explaining how the claimant’s employment came to an end, countering the allegedly false account given by the claimant himself. They sought to show that the claimant’s concerns had been dealt with by an independent Royal College of Surgeons’ investigation into his complaints. However, they also included the statement 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.” The letters went on to say that the claimant’s persistent campaign was “weakening genuine whistle-blowing”, adding that “we have reported his conduct to the GMC”. In October 2014 the claimant brought a claim before the Employment Tribunal (“ET”) alleging that he had suffered a number of detriments as a result of his legitimate whistle-blowing activities and contending that the letters included false observations, creating a wholly unfair and inaccurate portrayal of the claimant, constituting a detriment in law. The case before the ET raised issues in the three areas: whether the disclosures relied upon were “protected disclosures” pursuant to section 47B and within the meaning of section 43G of the Employment Rights Act 1996; if so, whether the claimant had suffered any detriment as a consequence; and if so, whether a reason, being more than trivial, in the mind of those acting for the defendant trust, for taking the action causing the detriment was the fact that the claimant had made protected disclosures. The ET rejected the claim, holding that (i) none of the letters in which the false statements were made had been in response to a “protected disclosure” within section 43G of the 1996 Act; and (ii) that none of the comments in the trust’s letters constituted a detriment to the claimant. The Employment Appeal Tribunal (“EAT”) dismissed the claimant’s appeal on all grounds.
On the claimant’s further appeal—
Held, appeal dismissed. (1) It was not appropriate for the EAT to consider, in the context of reasonableness, whether a particular complaint was made out or not. A disclosure of alleged wrongdoing might be reasonable even though it was ultimately found to be unsubstantiated provided, in the case of a section 43G disclosure, that the worker reasonably believed that it was substantially true. The question of reasonableness had to be assessed as at the time the complaint or concern was raised, not with hindsight after the complaint had been examined. In the light of the ET’s findings in the round about the complaints for the most part being old and/or false, it was fanciful to believe that the ET might have found any of the communications relied upon to be reasonable. A worker could not expect to have protection for a host of complaints unjustifiably brought to the attention of the media or other influential third parties on the basis that amongst them there was one issue which it might have been reasonable to disclose. A whistle-blower had to take some responsibility for the way in which complaints or concerns were framed, and the requirement of reasonableness in section 43G enabled an ET to refuse to give protection to irresponsible disclosures. The ET had legitimately reached the conclusion that there was only one relevant qualifying disclosure post the claimant’s resignation (paras 48, 49, 50–51).
(2) It was manifestly wrong and an error of law to suggest that the claimant’s standing could not be affected if the only purpose of the defendant was to put the record straight. A detrimental observation about a whistle-blower, claiming for example that he was a liar or a troublemaker, 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. That purpose —why the letter was written in that way— would be relevant at the later causation (in the sense of the “reason why”) stage when the question was whether the detriment was by reason of the protected disclosures, but it was irrelevant to the question whether a detriment was suffered at all. The only sensible inference from the offending passages in the letter was that the claimant had made specious, unjustified and unsubstantiated complaints. Any worker could reasonably treat such comments as damaging to his reputation and integrity and could reasonably believe that they might bring him into disrepute with his peers. Accordingly, there was clearly a detriment to the claimant in the way in which the letters were framed and the ET had erred in holding otherwise (paras 61–62).
(3) When assessing whether the detriment was by reason of the protected disclosure, the “reason why” question had to be asked with respect to the particular act which caused the detriment. The issue was not the reason why the letters rebutting the claimant’s allegations were written but why the offending passages which caused the detriment were included in those letters. Where the alleged detriments arose out of communications which were a response to the claimant’s disclosures to third parties, then even if the disclosures were protected disclosures, an employer was obviously entitled to respond to them in order to rebut what had been alleged and to put his side of the case, even robustly. If, as in the present case, the rebuttal also contained misleading statements which constituted a detriment to the worker, it did not follow that the reason for making those statements was the fact that the worker had made the protected disclosure. Conversely, if the response was to a communication which was not a protected disclosure, it did not follow that offending comments in the letter which gave rise to a detriment were necessarily unconnected to a protected disclosure. The reason for making the false or misleading statement might still be earlier protected disclosures made by the claimant. Furthermore, copies of a letter were not to be treated as protected disclosures with respect to all recipients merely because there was a protected disclosure with respect to one of them; such an approach would wholly undermine the carefully structured safeguards in the legislative scheme. The defendant trust’s objective had been, so far as possible, to nullify the adverse, potentially damaging and, in part at least, misleading information which the claimant had chosen to put in the public domain. This both explained the need to send the letters and the form in which they were cast. The defendant was concerned with damage limitation; in so far as the claimant was adversely affected as a consequence, it was not because he was in the direct line of fire. Accordingly, whilst contrary to the finding of the ET and the EAT, sending letters in the way they were drafted did constitute a detriment to the claimant, it was not a detriment on the grounds that the claimant had made protected disclosures (paras 64, 65, 67, 73–74).
Andrew Allen (instructed directly) for the claimant.
Simon Gorton QC (instructed by Weightmans LLP) for the defendant health trust.