Whistleblowers are entitled to two levels of protection in the workplace. Firstly, the dismissal of an employee will be automatically unfair if the reason (or principal reason) for the dismissal is that they have made a "protected disclosure". Secondly, workers (not just employees) are protected from any detriment made against them on the ground that they have made a "protected disclosure".
In both cases, the first step is to establish whether there has been a protected disclosure. In order to qualify:
- there must have been disclosure(s) of information which, in the reasonable belief of the person making the disclosure, is made in the public interest and tends to show one or more of certain types of wrongdoing or failure; and
- the disclosure(s) must have been made to one of the categories of recipient listed in the legislation. Disclosure to the employer is the first port of call. After that, protection is subject to additional conditions which vary according to the category of recipient.
In practice, most cases involve disclosure to the employer. The battleground is usually therefore focused on the elements in point one above. However, the recent case of Jesudason v Alder Hey Children's NHS Foundation Trust serves as a reminder that disclosures can sometimes be made to external parties other than the employer.
Mr Jesudason was a consultant surgeon in the paediatrics department of a children's hospital run by an NHS Trust (the Trust). He made complaints to the Trust regarding, what he considered to be, fundamental failings in the paediatrics department and clinical misjudgments. Mr Jesudason also contacted the media, which led to a critical article appearing in the Independent on Sunday.
The Trust ultimately asked the Royal College of Surgeons (RCS) to review Mr Jesudason's complaints. The resulting RCS report concluded that the overall care in the department did not fall below the general standard of acceptable practice. It did, however, make some suggestions for improvements and identified some failings in the way that the Trust had managed Mr Jesudason's whistleblowing. Some criticisms of Mr Jesudason were also made.
In the meantime, the relationship between Mr Jesudason and his colleagues had wholly broken down. The Trust decided that a panel should be convened to consider whether his contract should be terminated. In response, Mr Jesudason obtained an injunction in the High Court preventing the Trust from terminating his contract pending trial. He then made further disclosures to the Care Quality Commission (CQC).
During the subsequent High Court trial, it transpired that Mr Jesudason had improperly provided Private Eye magazine with documents obtained as a result of disclosure in the High Court proceedings. As a result of this, he entered into a compromise agreement under which he discontinued the High Court proceedings, paid a substantial sum towards the Trust's legal costs, resigned from his post and discontinued whistleblowing claims that he had initiated separately in the Employment Tribunal (the Tribunal).
Mr Jesudason continued to make allegations of malpractice to third parties (including the press and a committee of the House of Commons). In return, the Trust issued correspondence seeking to rebut his allegations.
Mr Jesudason then brought a new Tribunal claim for whistleblowing detriment (and race discrimination). He alleged that the Trust's correspondence was a detriment on the ground of protected disclosures made by him, on the basis that the correspondence incorrectly stated that the allegations he had made were wholly unsubstantiated.
The Tribunal found that several of Mr Jesudason's disclosures (such as those to the media) were not protected as they did not meet the additional reasonableness test for wider disclosure which applies to disclosures to that type of recipient. Other disclosures, such as those to the Trust (as his employer), the CQC (as regulator) and two MPs were protected.
However, the Tribunal went on to determine that the letters sent by the Trust did not in fact amount to a detriment. Mr Jesudason's claim therefore failed on that basis. Mr Jesudason appealed to the Employment Appeal Tribunal (EAT) which upheld the Tribunal's decision. He then appealed to the Court of Appeal (CA).
What did the Court of Appeal decide?
Several of the letters sent by the Trust had 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 overstated the position. In particular, the RCS report had in fact identified some areas of concern. The letters also stated that Mr Jesudason's actions were "weakening genuine whistleblowing".
The Tribunal had originally concluded that no reasonable employee would have considered the comments in the Trust's letters to be detriments. The EAT had agreed. The CA, however, did not. It held that the analysis was flawed and incorrect.
The Tribunal's conclusion suggested that Mr Jesudason's standing could not be affected if the Trust's only purpose was to "put the record straight". In the CA's judgment, that was wrong. A detrimental statement does not cease to be detrimental because its purpose is to tell the employer's side of the story. The employer's purpose is relevant at a later stage (when determining whether the detriment was by reason of the protected disclosure) but it is not relevant to the question of whether a detriment is suffered in the first place.
In the CA's view, there had clearly been a detriment to Mr Jesudason, given the way the letters were framed. The only sensible inference "from the offending passages" was that Mr Jesudason "had made specious, unjustified and unsubstantiated complaints, with perhaps some suggestion of bad faith". Any person might reasonably treat the Trust's comments as damaging to their reputation and integrity. It was a detriment.
However, Mr Jesudason's appeal failed at the next hurdle – the CA went on to hold that the detriment was not made against him on the grounds of his protected disclosures. The Trust had not issued the statements as retaliation for those disclosures. Rather, its objective was to try to mitigate against the adverse, and in part misleading, information that Mr Jesudason had himself chosen to put in the public domain. The Trust was seeking to protect its staff, reassure its patients and the wider public, and to calm media attention. It was also "intrinsically unlikely" that the Trust would have been retaliating against the protected disclosures themselves – not least since they were all (save for one) made some years earlier.
Mr Jesudason's appeal therefore failed.
This decision can on one level be taken as suggesting that employers are entitled to respond, in fairly robust terms, in order to rebut allegations against them. Even when the allegations being rebutted amount to protected disclosures. However, it would be wise to approach this with an abundance of caution. The Trust's comments in its letters were a detriment to Mr Jesudason. The Trust was only saved from liability on the basis that the letters, and therefore the detriment, were not issued in retaliation to Mr Jesudason's disclosures but, rather, in a bid to mitigate the consequences of those disclosures. This is a very fine line, and one that would be very easy to fall on the wrong side of in less extreme cases. Employer rebuttals remain fairly perilous territory and are usually best avoided wherever possible. Where a public rebuttal is being considered for any reason, advance advice is highly recommended.