Detriment and employer's rebuttal of employee's whistleblowing allegations

Jesudason v Alder Hey Children’s NHS Foundation Trust

An employer, seeking to defend its reputation, subjected an employee to an unlawful detriment in the manner in which it publicly denied his whistleblowing allegations but he failed to show that the employer’s actions were on the grounds that he had made a protected disclosure.

A worker has the right not to be subjected to any detriment by any act, or deliberate failure to act, by his or her employer on the ground that the worker has made a protected disclosure (s. 47B of the Employment Rights Act 1996).

Background

Mr Jesudason, a consultant surgeon, made various allegations against the trust which employed him. They centred on failings in how his department was run. After his resignation, he continued to allege malpractice by the trust via various publications and by contacting the Public Accounts Committee of the House of Commons. Some, but not all, of his allegations were upheld by an independent report. The trust responded to his allegations by writing to internal and external third parties stating that all Mr Jesudason’s allegations had been thoroughly investigated and found to be false. He lodged a tribunal complaint under s. 47B stating that the trust’s correspondence amounted to a detriment because it had incorrectly stated that all his allegations were false. The tribunal, upheld by the EAT, held that the trust’s correspondence did not constitute a detriment – it was merely the trust seeking to refute Mr Jesudason’s allegations. He appealed.

Court of Appeal decision

The Court of Appeal reversed the tribunal finding that there was no detriment but went on to dismiss the appeal because the detriment was not done on the ground of Mr Jesudason’s protected disclosures – rather the trust’s motivation was to minimise damage from the unprotected disclosures Mr Jesudason had made to the media.

Rejecting the trust’s argument that an attempt to defend itself in public could not amount to a detriment, the Court of Appeal held that while it was entitled to respond robustly to Mr Jesudason’s communications, it had failed to fairly or accurately reveal that some of his complaints were justified. The inference from this was that Mr Jesudason had made specious and unsubstantiated allegations with possibly a suggestion of bad faith. Anyone could reasonably treat this as damaging their reputation and integrity. The Court of Appeal also held that the tribunal was incorrect to hold that because the trust’s purpose in describing the allegations was ‘to put the record straight’ it could not therefore be a detriment. A detrimental observation about a whistleblower doesn’t cease to be a detriment because of the employer’s purpose or motive. The trust therefore had subjected Mr Jesudason to a detriment, but their motive became relevant in relation to whether this was done on the grounds that Mr Jesudason made had a protected disclosure, which they had not.

Link to judgment: https://www.bailii.org/ew/cases/EWCA/Civ/2020/73.html

Comment

This is a useful reminder that the scope of ‘detriment’ is wide: it need not involve any physical or economic consequences. Also, the protection is from any detriment: there is no test of seriousness or severity. The employee merely needs to show that a reasonable employee would or might take the view that he or she had been disadvantaged in the circumstances in which they had to work.