Whistleblowing: employer’s letter setting record straight was a detriment

An employer’s letter aimed at setting the record straight after an employee made allegations of wrongdoing amounted to a detriment. However, the employee’s claim failed because whistleblowing was not the reason for the treatment.

Trust investigates alleged failings

In Jesudason v Alder Hey Children's NHS Foundation Trust, Mr Jesudason, a paediatric surgeon, made allegations of fundamental failings in how the paediatric department was run. He made the allegations to his employer, several regulatory bodies and third parties, including the media. The Trust asked the Royal College of Surgeons to investigate the allegations. Its report concluded that the overall care provided by the paediatric department did not fall below the general standard of acceptable practice. However, it found that in certain cases care was sub-optimal and clinical governance was weak and it made suggestions for improvement.

Trust seeks to set the record straight

The Trust sent letters both internally and to third parties wholly rebutting Mr Jesudason’s allegations. It stated that each of the allegations had been independently investigated and found to be completely without foundation. 

Whistleblowing detriment claim

Mr Jesudason alleged these letters caused him reputational damage and amounted to detrimental treatment on whistleblowing grounds. 

The employment tribunal agreed that Mr Jesudason had made some protected disclosures, but ruled that the Trust’s correspondence did not amount to a detriment. It merely sought to set the record straight. The Employment Appeal Tribunal agreed and Mr Jesudason appealed to the Court of Appeal.

Letters were a detriment

The Court of Appeal ruled that the tribunal had been wrong to find the Trust’s correspondence did not amount to a detriment. It was wrong to suggest that because the Trust’s motive was to set the record straight, it could not constitute a detriment. The inference from the correspondence was that Mr Jesudason had made specious and unsubstantiated complaints. Any worker would regard that as damaging to their reputation. 

Detriment not on whistleblowing grounds

However, the Court of Appeal went on to decide that whistleblowing was not the reason for the detrimental treatment. The Trust had not sent the correspondence in retaliation for Mr Jesudason blowing the whistle but to minimise the damage caused by the potentially damaging and partly misleading information he had chosen to put in the public domain.

Mr Jesudason’s whistleblowing therefore claim failed. 

Implications

Employers making public statements after an employee has blown the whistle must make sure that what they say is accurate. The same applies to any statements made internally within the organisation. A suggestion that an employee’s allegations were unfounded when in fact they were upheld in part is likely to amount to a detriment. Although in this case the court found that whistleblowing was not the reason for the treatment that will not always be the case. The test that an tribunal must apply is whether the whistleblowing disclosure materially influences (in the sense of being more than a trivial influence) the employer's treatment of the whistleblower.