By Rachel Ellis, Partner & Regional Employment Rights Manager &
Matthew Rowlinson, Employment Rights Lawyer
Dr Christopher Day v Lewisham and Greenwich NHS Trust [2025] EAT 123
Background
Dr Day, a junior doctor, brought a whistleblowing detriment claim under section 47B of the Employment Rights Act 1996 (ERA) against Lewisham and Greenwich NHS Trust. His claim related to public statements made by the Trust in 2022 following the settlement of a previous whistleblowing case in 2018.
Dr Day argued that these statements—published in response to media scrutiny and a Care Quality Commission (CQC) concern—constituted detrimental treatment linked to earlier protected disclosures made during his employment. The tribunal accepted that one of the statements amounted to a detriment but found it was not materially influenced by Dr Day’s whistleblowing. It also held that the claim fell outside the scope of section 47B because the events occurred after employment had ended and were not employment related. The tribunal also dismissed his costs application.
Employment Appeal Tribunal (EAT) Decision
Dr Day appealed on several grounds, including the scope of section 47B and the tribunal's causation analysis.
The EAT held that:
- The tribunal was wrong to conclude that section 47B did not apply to post-employment detriments. The statute does cover such claims where the detriment is closely related to the employment relationship, as was the case here.
- The tribunal failed to properly consider whether the Trust’s refusal to amend or remove its public statements, particularly after receiving concerns from the CQC, might itself be a further detriment.
However, the EAT found these errors to be immaterial. The tribunal had been entitled to conclude that the Trust’s actions were not materially influenced by Dr Day’s disclosures. Instead, they were motivated by a desire to protect the Trust’s public reputation amid media interest and regulatory scrutiny.
Dr Day’s appeal against the Costs Judgment was also dismissed, with the Employment Tribunal’s reasoning found to be within its discretion and supported by the evidence.
Why This Matters
This case confirms that whistleblowing protections can extend to post-employment detriments where they are linked to the former employment relationship. For union reps and members, it’s a reminder that former workers may still be protected if employers respond unfairly to disclosures even after the contract has ended.
However, the burden of proving that the detriment was caused by the protected disclosure remains high. Clear evidence of retaliatory motive will be essential in any future claim.
The case also confirmed the long established principle that whilst the Tribunal has the discretion to award costs such awards were the exception and not the norm.
Outcome
The EAT dismissed Dr Day’s appeal. Although some legal missteps were identified, they did not affect the overall outcome, and the tribunal’s findings were allowed to stand.
