Dr Christopher Day v Lewisham and Greenwich NHS Trust

The appeal concerns a whistleblowing detriment claim under section 47B of the Employment Rights Act 1996 and an associated costs application. The Employment Tribunal found that one published statement by the Trust amounted to a detriment but that the protected disclosures did not materially influence the Trust’s conduct (the Fecitt "material influence" test), and that most of the alleged statements were true and therefore not detrimental on the pleaded basis. The Tribunal also concluded the complaints were not "in the employment field" for the purposes of section 47B. The Employment Appeal Tribunal dismissed the appeal, upholding the Tribunal’s principal findings on detriment, causation and costs, but identified two legal errors (failure to determine whether the Trust’s refusal to remove statements after CQC concerns was a detriment, and an incorrect application of the "in employment" issue); those errors were judged immaterial because the protected disclosures did not materially influence the Trust’s actions.

This is an appeal from two Employment Tribunal decisions: the Liability Judgment (16 November 2022) dismissing detriment claims made by Dr Christopher Day, and the Costs Judgment (26 April 2023) dismissing his costs application. The claimant had brought earlier proceedings (2014 claim) about protected disclosures he made while employed; those proceedings were heard in October 2018 and settled after his evidence. Following settlement the respondent published several public statements (October–December 2018 and January 2019) and sent letters to MPs and officials. The claimant sued in 2019, alleging those statements and related conduct caused detriment on the grounds of protected disclosures.

The issues framed and decided by the Employment Appeal Tribunal included:

• the statutory tests for detriment and causation under section 47B ERA (the Fecitt "materially influenced" test);
• whether particular passages in the Trust's public statements and letters were detriments;
• whether adverse inferences should be drawn from the respondent's defective disclosure and document destruction;
• whether the alleged detriments were "in the employment field" so as to be within section 47B; and
• whether the Employment Tribunal erred in refusing the claimant's application for costs despite finding unreasonable conduct by the respondent on disclosure.

The EAT's reasoning in summary:

• The Tribunal correctly applied the detriment and causation principles and its factual findings that most complained-of passages were true were open to it; only one passage was found to be a detriment, but it was not causally attributable to the protected disclosures.
• The Tribunal considered the disclosure failings and had power to draw adverse inferences; it reviewed late disclosure material and chose not to draw further adverse inferences because it accepted the respondent's key witness evidence on credibility and causation.
• The Tribunal erred in treating the complaints as falling outside section 47B (the EAT concluded the claimant could complain "in the employment field"), and failed to determine whether the Trust’s refusal to remove statements after CQC contact was a detriment; however, these mistakes were immaterial because the Tribunal’s findings on causation meant the claim would still fail.
• The Costs Judgment exercised discretion within permissible bounds: although the Tribunal found some unreasonable conduct by the respondent on disclosure, it found the claimant's conduct during the hearing also unreasonable and declined to award costs.

Appeal dismissed. The Employment Appeal Tribunal upheld the Employment Tribunal’s core factual findings that most complained-of statements were not detrimental and that the claimant had not shown that his protected disclosures materially influenced the respondent’s publication and circulation of those statements. Although the EAT identified two legal errors by the Employment Tribunal (failure to decide one identified detriment point about removal of statements after CQC concerns, and a mistaken conclusion that the complaint fell outside section 47B), those errors were immaterial to the outcome because the Tribunal’s findings on causation would have produced the same result. The appeal against the Costs Judgment was also dismissed as within the Tribunal’s proper discretion.

Appeal from Employment Tribunal (London South) Liability Judgment promulgated 16 November 2022 and Costs Judgment promulgated 26 April 2023; permission for some grounds granted by Andrew Burns KC (Deputy Judge of the High Court). The case engages earlier authority including Day v Lewisham & Greenwich NHS Trust [2017] ICR 917 (Court of Appeal) as part of the factual/procedural background.