Dr Therese Mary William v Lewisham and Greenwich NHS Trust

For a detriment claim under Employment Rights Act 1996, section 47B, a protected disclosure must have materially influenced the decision-maker. The knowledge and motivation of another worker cannot be attributed to a decision-maker who did not know of the disclosure. The composite-reasoning approach applicable to an automatic unfair-dismissal claim under section 103A does not alter that rule.

Whether a worker reasonably believed that disclosed information tended to show danger to health or safety is fact-sensitive. An appellate court will not disturb a tribunal's properly directed and reasoned factual findings merely because another inference was available.

The appellant, a consultant paediatrician and neonatologist, complained that the respondent subjected her to detriments for protected disclosures concerning feeding guidelines, rates of necrotising enterocolitis, alleged deaths, and an alleged failure to hand over patients.

The Employment Tribunal at Croydon dismissed her complaint under section 47B of the Employment Rights Act 1996. It found that only the handover disclosure was protected, and that it had not materially influenced the decisions to exclude her, pursue an MHPS investigation, or issue a written warning.

On appeal, the appellant challenged the Tribunal's conclusions on reasonable belief and causation. She also sought to adduce a later external review report as fresh evidence.

1. Appeal dismissed. The Employment Tribunal had directed itself correctly and made findings of fact that were neither perverse nor inadequately reasoned.

2. The Tribunal was entitled to find that the appellant did not hold a relevant health-and-safety belief concerning the rejection of her proposed feeding guidelines. Its conclusion was logically supported by its finding that her real complaint was that her work had been dismissed, rather than that the alternative guidelines endangered patients. The words “without caring about patients” did not compel a contrary finding.

3. The Tribunal was also entitled to reject the alleged disclosure concerning NEC rates and deaths. It considered the disclosure as a whole and found significant, conscious exaggeration about the audit results and alleged deaths. Although the appellant had genuine concerns about NEC rates, those findings permitted the conclusion that she lacked the asserted objectively reasonable belief.

4. Under section 47B of the Employment Rights Act 1996, the disclosure must have materially influenced the person who made the detrimental decision. Malik was followed: another person's knowledge and motivation cannot be imported into an unaware decision-maker. The Supreme Court's reasoning in Royal Mail Group v Jhuti, [2019] UKSC 55, concerned the statutory meaning of the reason for dismissal under section 103A and Part X; it did not alter the interpretation of section 47B.

5. In any event, the Tribunal comprehensively identified the actual influences on the detrimental decisions: the 30 July incident, managerial accounts, pressure from colleagues, and the decision-makers' own reasoning. It was entitled to find that none of the disclosures materially influenced those decisions. The status of the other alleged disclosures was therefore academic.

6. The fresh-evidence application was refused. The later external review could not probably have had an important influence on the result and did not satisfy the second condition in Ladd v Marshall, [1954] 1 WLR 1489.

• Employment Appeal Tribunal: dismissed the appeal and refused permission to rely on fresh evidence.
• Employment Tribunal, Croydon: on 6 July 2022 dismissed the appellant's complaint under section 47B of the Employment Rights Act 1996.