Wed 19 Feb 2020

When is a detriment not a detriment?

Employer denying truth of protected disclosure was a detriment but not a breach of whistleblowing protection.

Whistleblower protection includes both protection from dismissal and protection from detriment.  In the case of detriment the protection is from any act or deliberate failure to act by the employer done "on the ground" that the worker had made a protected disclosure.  So it is not enough for a claimant to show that they have suffered a detriment, it is also necessary to show that the employer's motive for inflicting the detriment was the making of the protected disclosure.  In Jesudason v Alder Hey Children's NHS Foundation Trust the claimant was unable to establish the necessary causal connection.

Mr Jesudason was an extremely distinguished paediatric surgeon employed by Alder Hey Children's NHS Foundation Trust ("the Trust") between 2006 and 2012.  Between 2009 and 2014 he made a series of allegations to the Trust, MPs, various regulatory bodies and certain third parties, including members of the media, in which he identified what he claimed were fundamental failings within the paediatric department.  At the request of the Trust the Royal College of Surgeons produced a report into the allegations.  Although this concluded that the overall care provided by the paediatric department did not fall below the general standard of acceptable practice it did identify some failings and suggest improvements.  It also found failings in the way in which the whistleblowing had been handled.

The Trust's Chairman subsequently sent letters responding to the allegations made by Mr Jesudason in which he set out the Trust's position.  Despite the RCS report finding some failings, the letters included statements that "each of Mr Jesudason's allegations have been thoroughly and independently investigated by different professional bodies on a number of occasions and found to be completely without foundation" and that Mr Jesudason's actions were "weakening genuine whistleblowing".

Mr Jesudason subsequently brought claims for whistleblowing detriment and race discrimination including in relation to the sending of the Chairman's letters. However, the Employment Tribunal concluded that the Trust was defending its position and sending the letters could not reasonably be viewed as causing a detriment.  After an unsuccessful appeal by Mr Jesudason to the EAT the matter reached the Court of Appeal.

Unlike the ET and the EAT, the Court of Appeal held that Mr Jesudason had been subjected to a detriment.  Even if the Trust's purpose in sending the letters was to put its side of the story, detrimental observations about Mr Jesudason had been made.  However, the appeal was still unsuccessful because the detriments were not on "on the grounds" of a protected disclosure having been made.  The critical issue in the appeal was the "reason why" the employer had acted in the way it did.  In this case the Trust's objective in sending the letters was found to be an attempt to nullify the adverse, potentially damaging and in part misleading information which Mr Jesudason had chosen to put in the public domain - it was not because he had made protected disclosures. 

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