Can an employer, seeking to defend its reputation, subject a worker to a detriment in the way it denies the truth of a protected disclosure?
Yes, held the Court of Appeal in Jesudason v Alder Hey Children’s NHS Foundation Trust.
Mr Jesudason is a paediatric surgeon. He made a number of disclosures regarding what he regarded as fundamental failings in the Department of Paediatric Surgery at Alder Hey Children’s Hospital. After he left his employment, he continued to press his case via various publications. Some, but by no means all, of his allegations were upheld by an independent report which was critical of the Trust’s defensive response.
The Trust defended its record in a number of letters by saying “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”. On a number of other occasions the Trust also said in letters that the Claimant was “weakening genuine whistle-blowing”.
A tribunal originally found that these were not detriments as the Trust was trying to defend its reputation and therefore no reasonable worker could have viewed that as a detriment. On appeal to the Court of Appeal, that finding was reversed. Rejecting the Trust’s case that an attempt to defend itself in public could not amount to a detriment Sir Patrick Elias said:
“a detrimental observation about a whistle-blower, claiming for example that he is a liar or a troublemaker, may be made in a letter whose purpose is to put the employer's side of the story. It does not cease to be a detriment because of the employer's purpose or motive. That purpose – why the letter was written in that way - will be relevant at the later causation...stage...but it is irrelevant to the question whether a detriment was suffered at all.”
Thanks to Matthew Jackson of 10 KBW for preparing this case summary.