Jesudason v Alder Hey Children's NHS Foundation Trust

The Court of Appeal dismissed the appellant's challenge to concurrent Employment Tribunal and Employment Appeal Tribunal findings that the bulk of his post-resignation disclosures were not "protected disclosures" under section 43G of the Employment Rights Act 1996 and that, although some Trust correspondence contained unfair or misleading statements, those statements did not constitute detriments "on the ground that" the appellant had made protected disclosures. The court reviewed the statutory framework for whistleblowing protection (sections 43A, 43B, 43F, 43G and 47B and the extension to former workers in section 43K) and reiterated that s43G imposes particular requirements for disclosures to persons other than the employer or a prescribed person, including a requirement of reasonable belief that allegations are substantially true and a broad "reasonableness" control. The court accepted that some of the Trust's responses overstated the conclusions of the Royal College of Surgeons review and that such statements were capable of constituting a detriment; but it held that the Employment Tribunal was entitled to find that the Trust's principal reason for issuing those rebuttals was to rebut material published by the appellant and to protect staff and patients, not to penalise him for protected disclosures, and therefore the necessary "reason why" link for victimisation was not established. The separate claim for race discrimination failed for lack of evidence that race was a significant influence on the Trust's conduct and because the tribunal's credibility findings and reasoning were open to it on the evidence.

This appeal arises from whistleblowing and race discrimination claims brought by a highly distinguished former honorary consultant surgeon who had been critical of his department and Trust. The claimant made multiple disclosures between 2009 and 2014 to his employer, prescribed regulators and to the media; he resigned in 2012 after settlement following an unlawful disclosure to the press which he admitted at trial.

Nature of the claim and procedural history

• The appellant sued for unlawful victimisation under the Public Interest Disclosure provisions of the Employment Rights Act 1996 and for race discrimination under the Equality Act 2010. The Employment Tribunal heard extensive evidence, found the claimant to be an unreliable witness and rejected the claims. The Employment Appeal Tribunal dismissed the appellant's appeal (UKEAT/0248/16/LA). Permission to appeal to the Court of Appeal was granted.

Issues for this Court

• Which of the communications relied on by the appellant were "protected disclosures" (noting statutory tests in sections 43A, 43B, 43F and 43G)?
• Whether the Trust's communications constituted "detriments" to the claimant and, if so, whether those detriments were done "on the ground that" the claimant had made protected disclosures (the "reason why" test).
• Whether the claimant had established race discrimination.

Court's reasoning

• The court accepted the Employment Tribunal and EAT approach that most post-2012 disclosures to media and third parties did not meet s43G requirements (notably the requirement of reasonable belief that allegations are substantially true and the s43G(1)(e) reasonableness inquiry). The only relevant qualifying post-Agreement disclosure was a PAC letter copy sent to the CQC.
• The court emphasised that s43G is a controlled gateway to disclosures beyond the employer or a prescribed person: the issue of "reasonableness" must be assessed at the time of disclosure and in light of whether the employer or a prescribed person had been able to deal with the matter. The ET's assessment that the Royal College of Surgeons review had addressed most of the claimant's complaints was a permissible evaluative finding.
• On detriment, the Court of Appeal held that some Trust communications did overstate the RCS findings and that such comments were capable of constituting a detriment. However, on causation (the "reason why" question) the ET had been entitled to find that the authors of the letters and statements were motivated by a desire to rebut and limit media and third-party publicity and to protect staff and patients — not by the fact of protected disclosures. That meant the necessary causal influence of protected disclosures was not proved.
• The race discrimination complaint likewise failed: the ET examined the matters relied upon, found no evidential basis to infer race as a significant influence, accepted the credibility of Trust witnesses and was entitled to conclude the Trust had discharged any shifted burden of proof.

Subsidiary findings and outcome

• The court accepted that the ET was entitled to prefer the Trust's witnesses and that credibility findings were determinative. It refused the appellant's invitation to remit the case for further factual inquiry or to substitute findings of discrimination.

The appeal is dismissed. The Court of Appeal held that most post-resignation disclosures were not protected under section 43G and, although some Trust communications were capable of constituting detriments, the Employment Tribunal was entitled to conclude that those communications were motivated by a desire to rebut public allegations and protect the Trust rather than being taken "on the ground that" the appellant had made protected disclosures; the race discrimination claim likewise failed on the evidence.