The Employment Rights Act 1996 states that “a worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the grounds that the worker has made a protected disclosure.”

This is also known as whistleblowing and the law is in place in order to protect a worker in the event that they ‘blow the whistle’ in relation to wrongdoing in the workplace.

A recent Court of Appeal case has decided how and why detriment arose in a whistleblowing case relating to medical professionals.

The case of Jesudason v Alder Hey Children’s NHS Foundation Trust involved a consultant paediatric surgeon who, over a number of years, made various protected disclosures to the Trust, the CQC, MP’s and the media in relation to alleged clinical misjudgements.

The Trust commissioned a report by the Royal College of Surgeons in order to assess Jesudason’s criticisms. Although the report concluded that overall the standard of care did not fall below the general acceptable level, it did record suggested improvements and found that the Trust had failed in managing Jesudason’s protected disclosures appropriately.

Off the back of the report, the Trust wrote several public letters to third parties stating that Jesudason’s claims had been thoroughly investigated and were “found to be completely without foundation” despite the report suggesting various improvements. The letters went on to state that Jesudason’s claims were “weakening genuine whistleblowing” claims.

Jesudason ultimately brought a claim in the Employment Tribunal for whistleblowing detriment suffered after the end of his employment with the Trust. He alleged that the letters had damaged his reputation. The case made its way up to the Court of Appeal.

The Court of Appeal held that there was clearly detriment to Jesudason in the way that the letters from the Trust were written, however it held that the detriment was not caused as a result of Jesudason blowing the whistle. Rather the detriment arose from communications by the Trust which were sent in response to Jesudason’s disclosures to the media.

The Court held that an employer is entitled to respond to allegations in order to set the record straight and rebut allegations. It just so happened that in this case, the Trust’s rebuttal of the allegations contained misleading statements that caused detriment to the worker, however this detriment could not be considered to be as a result of the protected disclosures made by Jesudason.

Therefore, the Trust was not held liable for the detriment caused to Jesudason.

This case demonstrates the difficulties in showing the link between blowing the whistle and causing detriment. It suggests that if a worker takes their protected disclosures public, the employer may not necessarily be liable for detriment caused in defending their public position in order to set the record straight.

Whistleblowing laws are complex and turn on the facts of each case. If you find yourself having to respond to sensitive complaints we are here to assist. Similarly if you are considering blowing the whistle yourself, our specialist GP Practices team is available to help you through the process.

Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.

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