Whistleblowers are protected from suffering a detriment after termination of employment

Employer’s PR statements following tribunal proceedings could have founded whistleblowing claim.

In Day v Lewisham & Greenwich NHS Trust, the EAT has made clear that whistleblowing detriments occurring after employment has ended and related to Employment Tribunal proceedings can lead to a successful claim.  

When does a whistleblower have protection?

There are two levels of protection for whistleblowers:

• The dismissal of an employee is automatically unfair if the reason, or principal reason, for their dismissal is that they have made a "protected disclosure", known colloquially as blowing the whistle. This means the dismissal is assumed to be unfair unless the employer can show otherwise.

• Workers are also protected from being subjected to any detriment (disadvantage) on the ground that they have made a protected disclosure. 

The definition of a "worker" for the purposes of protection from detriment is very wide and includes employees and workers, as well as a wide range of other types of individuals. It includes a former worker; so a worker who has made a protected disclosure and is subjected to a detriment by their former employer (for example, by receiving an unfair or inaccurate reference) after termination of their employment can still bring a claim for whistleblowing detriment.

To successfully bring a claim and activate the protection given under whistleblowing legislation, the worker must be able to show they have made a qualifying disclosure which is protected.

In this case the NHS Trust accepted Dr Day had made a protected qualifying disclosure concerning the safety of patients.

What is a qualifying disclosure?

 To be a qualifying disclosure the disclosure must meet the following requirements:

• Disclosure of information - Simply gathering evidence or threatening to disclose is not enough; there must be a factual disclosure of information.

• Subject matter of disclosure - the information must relate to one of six listed types of failure, wrongdoing or malpractice (see below).

• Reasonable belief - the person making the disclosure must have a reasonable belief that the information tends to show one of the relevant failures.

• In the public interest - the person making the disclosure must also have a reasonable belief that the disclosure is in the public interest rather than an individual’s personal interest.

The six listed types of failure, wrongdoing or malpractice overlap to a certain extent and cover a wide spectrum of wrongdoing:

• Criminal offences

• Breach of any legal obligation

• Miscarriages of justice

• Danger to the health and safety of any individual

• Damage to the environment

• The deliberate concealing of information about any of the above.

What makes a qualifying disclosure into a protected disclosure?  

For a qualifying disclosure to be protected (and therefore give protection to the whistleblower) it must be made to specific categories of people as set out in the ERA; with the most obvious being the whistleblower’s employer. There are circumstances where it may be appropriate to make the disclosure to another body such as the person responsible for the failure (when it is not the employer) or a Government minister/Member of Parliament or a prescribed body such as HMRC, Charity Commission, NHS England etc. A full list of prescribed people and bodies can be found on the GOV.UK website here.

When will an ex-worker be entitled to bring a claim for whistleblowing detriment?

An ex-worker would need to show they have made a protected qualifying disclosure in circumstances set out above. In addition, they need to show that the protected disclosure and alleged subsequent detriment was closely related to the employment relationship. This requirement was decided through case law almost 20 years ago when it was found that the definition of worker could include an ex-worker (including ex-employees). It is not always the case that an ex-worker would be protected but the EAT clarified that an ex-worker can be protected when:

ü  the protected disclosure relied upon was made during the employment relationship; and

ü  the detriment relied upon arose specifically out of Employment Tribunal proceedings brought by the ex-worker and so was closely related to the employment relationship.

The facts of this case

The origins of this case lay in a period in 2013-2014 when Dr Day was employed by the NHS Trust as a specialist registrar in medical training arranged by Health Education England (HEE). During that time, the Claimant made several disclosures relating to patient safety at the hospital where he worked. 

In October 2014 and April 2015, Dr Day brought claims of unfair dismissal and whistleblowing against the NHS Trust and HEE. The claims were not heard in the Employment Tribunal until 2018; the considerable delay between issuing the claims and the substantive hearing arose because HEE challenged the finding in the lower courts that it fell within the definition of an employer for the purposes of the whistle-blowing regime. In a decision that may impact on other training providers and third parties supplying staff, the Court of Appeal found against HEE. It decided that the fact that an individual was a "worker" within the meaning of the ERA for one employer did not mean that they could not also fall within the extended meaning of "worker" for another employer.

When the case finally came to court in 2018 it was settled after Dr Day gave his evidence but before the NHS Trust took to the stand. The case was settled with an “Agreed position statement” but no financial compensation or confidentiality agreement for either party.

After the case was settled the NHS Trust made statements on its website and to specific individuals including MPs and local public officials relating to the case. In March 2019 Dr Day brought a further claim (2019 claim) in the Employment Tribunal for post-termination detriments relating to the statements put out by the NHS Trust. The NHS Trust argued the statements were made to brief the recipients because there had been a high level of public interest in the case, mainly due to Dr Day crowdfunding to raise funds to support his case.  Dr Day argued the statements made by the NHS Trust were untrue and detrimental to him.

The Employment Tribunal decision

The Employment Tribunal initially found in favour of the employer for several reasons including that the claim for post-termination detriment fell outside the scope of section 47B of the Employment Rights Act 1996 (ERA). The Tribunal took the view that the alleged detriments occurred after the employment relationship ended and were not “in the employment field” but rather in the ex-employee’s capacity as a litigant and crowdfunder.

Outcome of the Appeal

The ex-worker appealed the outcome to the EAT which found the Employment Tribunal was wrong in concluding the claim fell outside section 47B of ERA and had wrongly applied the “in employment” test. Despite this error, the appeal was dismissed because the error was immaterial to the outcome of the case.

The EAT upheld most of the findings of the Employment Tribunal. It agreed most of the statements made publicly by the NHS Trust were true or not detrimental, except for one statement implying the Respondent had decided not to pursue costs before Dr Day withdrew his claim, which was found to be a detriment.

However, the EAT decided this detriment was not caused by Dr Day’s protected disclosures; rather, the statements were made as part of a public relations response to media interest and to protect the NHS Trust's reputation. The Employment Tribunal rejected Dr Day’s allegations that the NHS Trust’s position on costs amounted to threats, viewing them as normal litigation considerations.

Key learning points for employers on handling whistleblowing claims

To handle whistleblowing issues effectively and transparently, employers should:

• Have a clear whistleblowing policy to help managers identify when a complaint may be a protected disclosure

• Ensure the whistleblowing policy outlines a clear process for dealing with potential protected disclosures

• Train managers to recognise protected disclosures and investigate them properly

• Train managers to understand the protections available to whistleblowers, including the fact that a wide range of workers and former workers may be protected

• Build a culture of trust and openness, maintaining confidentiality for the whistleblower where possible

When dealing with a worker who has made a protected disclosure, employers should be clear about why they are following any chosen course of action. In this case the employer was able to convince the Employment Tribunal and the EAT that its actions were not related to the protected disclosures and that they had a different purpose, which in this case was to protect the reputation of the Trust.

To successfully defend claims of unfair dismissal or detriment, linked to whistleblowing, employers should keep clear records of actions taken in relation to the employee and the reasons behind them. This is particularly important because workers who make protected disclosures benefit from protection from day one of their employment. They can bring a claim for detriment at any time during their employment and afterwards providing they comply with statutory time limits on bringing a claim.  If dismissed, employees may bring a claim for unfair dismissal without meeting the current eligibility criteria of two years’ service.

Employers are sometimes caught out when they fail to follow a fair dismissal process with employees who are dismissed in the first two years of employment because they do not maintain adequate documented evidence of the reasons for dismissal. This can present a problem for employers in both discrimination and whistleblowing claims. If the intention of the dismissing officer is not clear in the contemporaneous evidence, the Employment Tribunal may infer an ulterior motive and then the employer has a harder job to convince the Employment Tribunal of its legitimate intentions.   

If you would like to discuss any aspect of this article further, please contact our employment team on 0113 244 6100. 

You can also keep up to date by following Wrigleys Solicitors on LinkedIn.

The information in this article is necessarily of a general nature. The law stated is correct at the date (stated above) this article was first posted to our website.

Specific advice should be sought for specific situations. If you have any queries or need any legal advice please feel free to contact Wrigleys Solicitors.