Dr Christopher Day v Lewisham and Greenwich NHS Trust

A whistleblowing detriment claim under section 47B of the Employment Rights Act 1996 may concern post-termination conduct where the claimant is a former worker, the protected disclosures were made in employment, and the alleged detriment is closely connected with earlier proceedings about those disclosures. The question is not answered by characterising the claimant merely as a litigant.

Liability nevertheless requires proof that the protected disclosures materially influenced the employer’s treatment. An error in failing to decide an alleged detriment will be immaterial where the tribunal’s unchallenged causation findings mean that the claim must fail in any event. In costs matters, the tribunal may refuse an award after considering the whole course of proceedings and the unreasonable conduct of both parties.

The Claimant, a former specialist registrar, had made protected disclosures about patient safety while employed by the Respondent. His earlier whistleblowing proceedings were settled during the hearing in October 2018.

He subsequently alleged that public statements, letters to public officials, and the Respondent’s failure to remove or amend statements were post-employment detriments for the purposes of section 47B of the Employment Rights Act 1996. The Employment Tribunal dismissed the claim in its Liability Judgment of 16 November 2022. It found one statement detrimental, but found no material causal link to the disclosures. The majority also held that the matters were outside the employment field. It later dismissed the Claimant’s costs application in a Costs Judgment of 26 April 2023.

The appeals concerned detriment, causation, adverse inferences from disclosure failures, the post-termination scope of section 47B, and the exercise of the costs discretion.

1. Appeal dismissed. The Employment Tribunal erred by failing to decide whether the deliberate failure to remove or update the statements after the Care Quality Commission expressed concerns was a detriment. It also erred in holding that the claim was outside section 47B of the Employment Rights Act 1996. Neither error affected the result.

2. The tribunal’s statement that a true published statement was not a detriment did not lay down a general rule that truth precludes detriment. Read fairly and in the light of the agreed list of issues, it addressed the pleaded allegation that the material was false and defamatory. The Claimant had not pleaded the tone, content, or mere circulation of the statements as freestanding detriments.

3. The tribunal correctly applied the causation test from Fecitt: a protected disclosure must materially influence the employer’s treatment. Its findings that the statements were published to respond to media interest and protect the Respondent’s reputation, and that the disclosures had no material influence on their drafting, were open to it. Its decision not to draw adverse inferences from defective disclosure was also open to it, particularly because it assessed the available documents and accepted Mr Travis’s evidence.

4. A former worker can invoke section 47B for alleged post-termination retribution where the disclosures were made during employment and the alleged detriment is closely connected with proceedings concerning those same disclosures. The Claimant was not acting only as a crowd-funded litigant. However, the claim necessarily failed because causation had not been established. The omitted CQC detriment would likewise have failed on causation.

5. The dismissal of the costs application disclosed no error of law. Having found the Respondent’s disclosure conduct unreasonable, the tribunal was entitled to consider the whole picture, including the Claimant’s excessively lengthy and unfocused evidence. It permissibly concluded that a costs award would not be just and equitable.

• Employment Appeal Tribunal: Appeal dismissed. The tribunal’s two errors in the Liability Judgment were immaterial to the dismissal of the whistleblowing claim.
• Employment Tribunal (London South): Liability Judgment, promulgated 16 November 2022, dismissed the detriment claim. Costs Judgment, promulgated 26 April 2023, dismissed the Claimant’s costs application.