Chatterjee v Newcastle Upon Tyne Hospitals NHS Trust

For a detriment claim under section 47B of the Employment Rights Act 1996, the issue is whether the protected disclosure materially influenced the treatment, in the sense of being more than a trivial influence. More than one influence may be material.

A tribunal must analyse the mental processes of each relevant decision-maker. Where the facts establish a sufficient prima facie case, section 48(2) requires the employer to show the ground for its conduct. Rejection of the employer's stated explanation does not automatically establish liability, but the tribunal must assess all material findings and explain why protected disclosures did not materially influence the conduct.

The claimant, a consultant plastic surgeon, raised concerns that a new on-call rota endangered patient safety. The Employment Tribunal found that he had made protected disclosures under the Employment Rights Act 1996. It also found that he suffered a series of detriments connected with an investigation, restrictions on his duties, and its handling, but dismissed his claims because the disclosures had not caused the treatment.

The claimant appealed against that dismissal. The respondent cross-appealed against the findings that the claimant had made protected disclosures. The central issues were whether the Tribunal had properly applied the causation and burden-of-proof rules for protected-disclosure detriment claims, and whether its protected-disclosure findings were legally sufficient.

1. Appeal allowed; cross-appeal dismissed. The Employment Tribunal correctly identified the substantive section 47B test: a protected disclosure must have materially influenced the treatment, meaning more than trivially. The test permits more than one material or contributing influence.

2. However, a tribunal deciding whether treatment was on the ground of a protected disclosure must examine the conscious or unconscious mental processes of the relevant decision-maker. This was particularly important because the alleged detriments involved different actors and a possible mixture of influences.

3. Under section 48(2) of the Employment Rights Act 1996, findings of both a protected disclosure and detriment do not inevitably shift the burden. There must be a sufficient prima facie case calling for an explanation. On the Tribunal's own findings—including appalling record keeping, unexplained intervention in the investigation, withholding favourable evidence, and astonishing failures to review restrictions and sickness absence—it would have had to find such a case.

4. The employer must then show the grounds operating on the decision-makers' minds. Its failure to establish its particular explanation does not automatically mean that the claim succeeds. The tribunal may nevertheless infer from all the facts that an innocent explanation existed. But the Tribunal here had not adequately explained why Mr Hodgkinson's admitted antipathy and ongoing concerns wholly excluded the possibility that the claimant's rota disclosures materially influenced the conduct. It also failed to engage with the implications of its findings about Mr Clarke's and Mr Hodgkinson's conduct.

5. The protected-disclosure findings were not vitiated. Read fairly in their hospital context, the Tribunal's findings sufficiently identified disclosures of information about risks to patient safety under section 43B(1)(d). Although fuller findings of the examples communicated would have been preferable, the omission was not fatal.

• Employment Appeal Tribunal: The claimant's appeal against dismissal of the protected-disclosure detriment claims was allowed. The respondent's cross-appeal against the protected-disclosure findings was dismissed.
• Employment Tribunal: The Tribunal found that the claimant had made protected disclosures, but dismissed his claims under section 47B of the Employment Rights Act 1996 because it found that no detriment was on the ground of those disclosures.