An employer who made a damaging false statement about a whistleblowing ex-employee to third parties in an attempt to set the record straight was not liable for whistleblowing detriment.
Mr Jesudason is a paediatric surgeon who worked at the Alder Hey Children’s NHS Foundation Trust. He was highly critical of the Trust and of his colleagues and made a series of serious allegations to the Trust and to various regulatory bodies and third parties, including the media, which he later claimed were disclosures protected by whistleblowing legislation. The Trust asked the Royal College of Surgeons (RCS) to investigate allegations made by Mr Jesudason about his department. The RCS report concluded that overall the care given by the department was acceptable but it made suggestions for improvements and found failings in the way that the Trust had managed Mr Jesudason’s whistleblowing.
The relationship between Mr Jesudason, the Trust and his colleagues deteriorated further. Following court proceedings, during which it transpired that he had lied about leaking documents to Private Eye, Mr Jesudason resigned.
Mr Jesudason brought an employment tribunal claiming alleging that he had suffered a detriment as a result of having made whistleblowing allegations. He also brought race discrimination claims (which are not covered in this alert).
The employment tribunal found that allegations Mr Jesudason had made to two MPs, the Trust and to the Care Quality Commission were disclosures which were protected by whistleblowing legislation.
In response to Mr Jesudason’s allegations, the Trust’s Chairperson had sent letters to third parties setting out the Trust’s position. In particular, he sent out letters stating 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”. These comments did not accurately reflect the findings in the RCS report. Mr Jesudason claimed that these comments (among others) constituted a whistleblowing detriment because they were damaging to his standing and reputation. The employment tribunal did not agree with him. It held that, as the Trust was defending its position, no reasonable employee could have considered the comments to be detriments.
Mr Jesudason’s whistleblowing claim in the employment tribunal therefore failed. His appeal to the EAT was unsuccessful and he appealed to the Court of Appeal.
The Court of Appeal disagreed with the suggestion in the employment tribunal’s conclusion that because the Trust’s only motive was to put the record straight, this was not a detriment to Mr Jesudason. A detrimental observation about a whistleblower – for example, an observation that that he is a liar or a troublemaker – would still be a detriment even if the employer’s motive was to put its side of the story. The Court of Appeal considered that there had clearly been a detriment to Mr Jesudason in that the Trust’s comments could reasonably have been treated as damaging to his reputation and integrity.
While the Court of Appeal found that the Trust’s motive was irrelevant to whether or not Mr Jesudason’s treatment constituted a detriment, it held that the Trust’s motive was relevant to the question of whether or not the whistleblowing allegations were the cause of the detriment (as must be the case for a successful whistleblowing claim). In other words the motive only becomes relevant at the causation stage.
The Court of Appeal held that, while Mr Jesudason had suffered detriment, this was not because he was a whistleblower. The Trust had made the detrimental (and false) comments to minimise the effect of the damaging and partly untrue allegations that Mr Jesudason had put in the public domain, and (the Court of Appeal held) an employer is entitled to respond to whistleblowing allegations in order to rebut them. Mr Jesudason had not therefore suffered detriment on the grounds of whistleblowing. His appeal was dismissed.
WHAT DOES THIS MEAN FOR EMPLOYERS?
As with many whistleblowing cases, this was a very fact sensitive case. It does not give employers carte blanche to make detrimental comments about whistleblowers or to take action against whistleblowers for making public whistleblowing allegations. However, this case does show that employers will not necessarily be liable under the whistleblowing legislation for taking action, which is likely to be a detriment under the whistleblowing legislation, to put the record straight by rebutting whistleblowing allegations that have been made to third parties, even if the rebuttal may damage the whistleblower’s reputation.