William v. Lewisham and Greenwich NHS Trust

The Employment Appeal Tribunal dismissed the appeal against an Employment Tribunal decision dismissing a section 47B whistleblowing detriment claim. The EAT upheld the ET's findings that (1) the claimant did not have an objectively reasonable belief that parts of her disclosures about feeding guidelines and necrotising enterocolitis rates tended to show a danger to health or safety under section 43B of the Employment Rights Act 1996, and (2) although the respondent had subjected the claimant to detriments (exclusion/suspension, an MHPS investigation and a written warning), the protected disclosure that was found (a lack of handover on 13 July 2019) did not materially influence those decisions.

The EAT applied the EAT decision in Malik v Centros Securities plc as the correct approach to causation under section 47B and held that Royal Mail Group v Jhuti (Supreme Court) does not alter the interpretation of section 47B. An application to admit a post-hearing external review report was refused under the Ladd v Marshall criteria because it would not probably have had an important influence on the result.

Background and procedural posture. The appellant, a consultant paediatrician and neonatologist, brought a complaint under section 47B of the Employment Rights Act 1996 that she had been subjected to detriments by her employer because she had made protected disclosures. After a five-day Employment Tribunal hearing, the ET dismissed her complaint on 6 July 2022. With permission to appeal, the appellant advanced four grounds on law and fact, and sought to adduce a post-hearing external review report.

Nature of the claim and relief sought. The claim was a whistleblowing/detriment claim under section 47B seeking declarations or remedies for detriments inflicted on the ground that she had made protected disclosures (alleging protected disclosures about failure to adopt feeding guidelines, high NEC rates and a lack of handover).

Issues framed. The appeal raised (i) whether the ET erred in finding the guideline and NEC disclosures were not protected because the appellant lacked a reasonable belief under section 43B, (ii) whether the ET mischaracterised the evidence about NEC rates and credibility, (iii) whether the ET misapplied the statutory causation test in section 47B and wrongly followed Malik rather than the approach in Royal Mail v Jhuti, and (iv) whether the ET erred in its material influence analysis in respect of exclusion, MHPS investigation and sanction. The appellant also sought permission to adduce a fresh external review report.

Reasoning and disposition. The EAT reviewed the ET's detailed factual findings. It held that the ET reasonably separated the disclosure into components, accepted that the handover disclosure was a protected disclosure but was entitled to find that the guideline disclosure was concerned primarily with perceived dismissal of the appellant's work rather than a health and safety risk, and that the NEC-related statements involved exaggeration and factual inaccuracy making any belief objectively unreasonable. On causation the EAT held the ET had applied the correct legal test and was entitled to find that the decision-makers were motivated by the 30 July 2019 incident and other factors rather than by the protected disclosure; the EAT followed Malik in rejecting attribution of another person's knowledge and motivation to an uninformed decision-maker under section 47B and held that Jhuti did not change the meaning of section 47B. The application to admit the external review was refused under Ladd v Marshall as it would not probably have had an important influence on the outcome. The appeal was dismissed.

The appeal was dismissed. The EAT held that the Employment Tribunal had not erred in law or approach: it was entitled to find that the appellant lacked an objectively reasonable belief that her guideline and NEC-related disclosures tended to show danger to health or safety; that only the handover disclosure was protected; and that the protected disclosure did not materially influence the respondent’s detrimental decisions. The EAT followed Malik v Centros Securities plc on causation under section 47B and concluded that Royal Mail v Jhuti does not alter the interpretation of section 47B. An application to admit fresh evidence was refused under Ladd v Marshall because it would not probably have altered the result.

Appeal from an Employment Tribunal decision (Croydon) which dismissed the claimant's section 47B complaint after a five-day hearing (dismissed 6 July 2022). Permission to appeal granted by HH Judge Auerbach on 5 July 2023. This judgment is the Employment Appeal Tribunal decision: [2024] EAT 58.