The law protects workers from suffering a detriment (or disadvantage) as a result of blowing the whistle. The Court of Appeal has held in Jesudason v Alder Hey Children’s NHS Foundation Trust that tribunals should not focus on the employer’s motive in telling their side of the story when deciding whether the worker has suffered a detriment or not.
Mr Jesudason, who was of Sri Lankan origin, was a paediatric surgeon at the Alder Hey Children’s Hospital from 2006. Almost as soon as he took up his post, tensions developed between him and his colleagues.
After a failed mediation process to resolve them, he made a number of protected disclosures about professional incompetence and improper medical practices which he claimed the Trust tried to stop him from pursuing. These included disclosures to Channel 4, the BBC and the Public Accounts Committee of the House of Commons. In 2011, the Trust carried out a review of clinical practices which found some failings but that overall the care provided had not fallen below the general standard of acceptable practice.
However, Mr Jesudason continued to make disclosures to bodies such as the Care Quality Commission and the national press. In response, the Trust wrote letters to a number of these organisations, rebutting his claims and making clear that it had reported him to the General Medical Council. Indeed, it claimed that his persistent campaign was "weakening genuine whistle-blowing."
He resigned in 2012 after reaching a compromise agreement with the Trust. In October 2014 he lodged fresh tribunal claims alleging that he had suffered a number of post-employment detriments as a result of his legitimate whistleblowing activities.
Tribunal and EAT decisions
Rejecting all his claims, the tribunal found that he was an unreliable witness who had knowingly lied about the circumstances in which he had resigned from the Trust. It held that he had not suffered a detriment as a result of the letters written by the Trust to various bodies, as it was just trying to defend its own reputation against his unjustified claims.
Mr Jesudason then appealed to the EAT which dismissed the appeal on all grounds, concluding that the tribunal had not made any material mis-directions or other errors of law.
Decision of Court of Appeal
The Court of Appeal disagreed on that point, however, holding that it was “manifestly wrong” to focus on the Trust’s motive as the determining factor when deciding whether Mr Jesudason had suffered a detriment as a result of the letters it had sent about him. Although the Trust may have just been trying to put its side of the story to various bodies, it was still a detriment to call a whistle-blower a liar or a trouble-maker in a letter.
As such the Court held that: “It does not cease to be a detriment because of the employer's purpose or motive. That purpose – why the letter was written in that way - will be relevant at the later causation (in the sense of the "reason why") stage when the question is whether the detriment was by reason of the protected disclosures, but it is irrelevant to the question whether a detriment was suffered at all.”
The Court then found, when considering the reason “why”, that although there had been a detriment to Mr Jesudason in the way in which the letters were framed, he had not suffered a detriment on the grounds that he had made a protected disclosure. Although he was adversely affected as a consequence, it was not because he was in the direct line of fire.