Whistleblowing legislation acts as a critical safeguard, designed to protect workers who raise concerns about malpractices within their organisations. At the heart of this legislation is the concept of a protected disclosure, as defined by the Employment Rights Act 1996 (the ERA 1996). Provided a disclosure meets the relevant criteria, a worker has the right not to be subjected to a detriment either by their employer or a colleague, on the ground that they have made a protected disclosure.
This legal protection was recently considered by the Employment Appeal Tribunal (the EAT) in a case involving Dr William, a consultant paediatrician (the Claimant), and the Lewisham and Greenwich NHS Trust (the Respondent). The case considered the question of causation in a whistleblowing detriment claim and, in particular, whether the motive of another person can be attributed to the person alleged to have subjected a whistleblower to a detriment.
Case facts
The case centred around the Claimant’s strained working relationship with a colleague named Dr Ezzati, with both doctors having previously filed reports concerning the other’s clinical conduct. On 30 July 2019, there was an altercation between the Claimant and Dr Ezzati which was filmed and shared by Dr Ezzati with other consultants (the Key Incident). Subsequently, the Claimant reported the Key Incident and lodged several complaints, including a serious allegation that Dr Ezzati missed a handover that left a chickenpox alert uncommunicated on the neonatal ward. This particular allegation constituted a protected disclosure under the ERA 1996.
The Claimant was subsequently subject to a Maintaining High Professional Standards (MHPS) investigation in respect of the Key Incident. During this process, the Claimant was suspended and barred from the hospital premises. The investigation report acknowledged inaccuracies in the Claimant’s account of the Key Incident but found no malicious intent. It also pointed out broader communication issues within the team. Despite these findings, the Claimant was invited to a disciplinary hearing and later received a 12-month written warning, which she unsuccessfully appealed. The Claimant lodged a claim in the Employment Tribunal (ET) under section 47B of the ERA 1996, asserting that the Respondent had subjected her to detriments following her protected disclosure.
The ET held that, although the Claimant had made a protected disclosure, the subsequent detriments faced by the Claimant, including the suspensions and the MHPS investigation (decisions taken by three different people), were not motivated by this disclosure. Instead, the ET found that these actions were taken in the context of the Claimant’s overall relationship with Dr Ezzati and the specific Key Incident. The ET’s findings were in line with the precedent set in Malik v. Centros Securities plc, which held that, for a detriment to be legally attributed to a protected disclosure, the decision-maker must have direct knowledge of the disclosure and be influenced by it in their decision-making process.
The ET dismissed the argument that the motivations of those who are aware of the disclosure could indirectly influence or manipulate the decision-makers, a concept which applies to whistleblowing unfair dismissal claims following a previous Supreme Court decision (the Supreme Court Decision). The ET’s decision upheld a clear legal distinction between dismissal and detriment claims, prompting the Claimant to appeal the ET’s ruling.
The EAT decision
The EAT’s dismissed Dr William’s appeal and reaffirmed the ET’s findings that the detriments she experienced were not motivated by her protected disclosure. The EAT differentiated the case from the Supreme Court Decision on dismissal, emphasising that the same principles did not apply to detriment claims. Furthermore, the EAT noted that the Supreme Court Decision focused specifically on the interpretation of section 103A for unfair dismissal and did not logically alter the interpretation of section 47B related to detriment claims.
The EAT concluded that, even if the ET had misinterpreted the application of section 47B, the Claimant’s case would not fall within the principles of the Supreme Court Decision, as she was unable to show that her protected disclosure was the actual, concealed reason behind the detriments. The Claimant needed to demonstrate that the protected disclosure had a material influence on the detriments suffered, which was not established in this case.
Comment
The decision in William v. Lewisham and Greenwich NHS Trust confirms that, for liability to be found in whistleblowing detriment claims, the protected disclosure has to be a material influence on the person that subjects the worker to a detriment. Unlike the Supreme Court Decision in an unfair dismissal case, the motive of another person cannot be attributed to the decision-maker. To do so would produce a result where a decision-maker could be subject to personal liability for detriment as the result of that other person’s motives. This is in direct contrast to an unfair dismissal claim where it is only the employer that is liable.
The case emphasises the need for the protected disclosure to materially influence the decision which leads to the detriment. This stands in sharp contrast to the Court of Appeal’s ruling in Timis v. Osipov, under which detriment, for which individuals can be personally liable, was held to include affecting a dismissal. The omission of any reference to Timis may prove significant because it provided an opportunity to align the legal treatment of detriment and unfair dismissal claims. It seems possible that this particular issue may be revisited again by tribunals.
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