Jesudason v Alder Hey Children's NHS Foundation Trust

A disclosure to persons other than the employer or a prescribed person is a last resort under Employment Rights Act 1996, section 43G. It must satisfy every statutory condition, including all-circumstances reasonableness assessed when it was made. A wide public disclosure containing many unjustifiable complaints does not gain protection merely because it includes one issue which might reasonably have been disclosed.

Detriment and motive are separate inquiries. An employer’s inaccurate response may damage a whistle-blower’s reputation and amount to a detriment. Liability arises only where the protected disclosure materially influenced the impugned treatment. The statutory burden of proof in a race claim remains a two-stage process.

The appellant, a former honorary consultant paediatric surgeon, alleged that the respondent Trust subjected him to detriments after his 2012 resignation because of protected disclosures concerning clinical and management failings. He also alleged race discrimination.

The Employment Tribunal rejected the claims. The Employment Appeal Tribunal dismissed his appeal: UKEAT/0248/16/LA. The appellant appealed to the Court of Appeal.

The central issues were whether communications to MPs, media organisations and other bodies were protected disclosures under section 43G; whether the Trust’s responses caused a detriment; whether any detriment was on the ground of protected disclosures; and whether race played a part in the treatment.

1. Appeal dismissed unanimously. The Court upheld the dismissal of the whistle-blowing and race discrimination claims.
2. The post-agreement communications to bodies other than the Trust, a prescribed person, or the CQC did not satisfy section 43G of the Employment Rights Act 1996. Disclosure to such third parties is exceptional and must be reasonable in all the circumstances. The Employment Tribunal was entitled to find that the communications repeated old, rejected or false allegations, despite the Trust’s investigation and implementation of recommendations. Reasonableness had to be assessed when the disclosure was made, rather than with hindsight. The Employment Appeal Tribunal erred in treating the ultimate truth of the Ahmed allegation as decisive, but the error was immaterial. A broad public disclosure could not be protected because one complaint within it might have been reasonable if separately made.
3. The Employment Tribunal and Employment Appeal Tribunal erred in holding that the Trust’s letters were incapable of constituting detriments. Their misleading assertion that every allegation was wholly unfounded could reasonably damage the appellant’s integrity and standing. The employer’s purpose in answering allegations was irrelevant to the anterior question whether the treatment was detrimental.
4. That error did not establish liability. Applying Manchester NHS Trust v Fecitt, [2011] EWCA 1190, the question was why the offending statements were included, not merely why the letters were sent. The Tribunal had found that the Trust sought to limit damage caused by the appellant’s non-protected public communications and to put its position. The protected disclosures did not materially influence the impugned statements. A copy sent to the CQC did not make the same letter a protected disclosure to every other recipient.
5. The race claim also failed. The Tribunal’s findings did not support an inference that race affected the treatment and, in any event, established that a person of any race making the same allegations would have been treated in the same way. No remission was warranted.

• Court of Appeal (Civil Division) — dismissed the appeal: [2020] EWCA Civ 73.
• Employment Appeal Tribunal — dismissed the appeal from the Employment Tribunal: UKEAT/0248/16/LA.
• Employment Tribunal — rejected the whistle-blowing and race discrimination claims.