The fundamental principle of whistle-blowing is straightforward, even if the case law may not be. That is, an employee who “blows the whistle” by raising allegations of impropriety should not be subjected to any detriment for having done so. However, the definition of “detriment” is widely construed and, as the recent case of Jesudason v Alder Hey Children’s NHS Foundation Trust demonstrated, even in defending itself against allegations an employer can put an employee to a “detriment”.
Mr Jesudason was a consultant paediatric surgeon who, between 2009 and 2012, made a number of disclosures regarding perceived failures within the Department of Paediatric Surgery at the Alder Hey Children’s NHS Trust (“the Trust”). Mr Jesudason repeated many of his disclosures to the press. In 2011 an investigation by the Royal College of Surgeons found that overall care within the department had not fallen below acceptable standards, though in areas it had been sub-optimal. Mr Jesudason resigned from his role with the Trust in December 2012.
Throughout 2013, various members of the Trust sent letters, emails and accounts of events to Trust consultants, the General Medical Council and MPs regarding the situation and rebutting Mr Jesudason’s criticisms. In these letters the Trust repeatedly stated that Mr Jesudason’s allegations were “thoroughly and independently investigated and were found to be completely without foundation” (even though the investigation in 2011 had identified areas of concern). Comments were also made to the effect that by his behaviour Mr Jesudason was “weakening genuine whistle-blowing” principles.
Mr Jesudason issued proceedings in the Employment Tribunal, claiming that these comments damaged his standing and reputation and amounted to a “detriment” caused by the whistle-blowing disclosures he had made in respect of the Trust.
Initially the Employment Tribunal found that there was no detriment suffered by Mr Jesudason as the Trust was trying to set the record straight, protect its staff and confirm to patients that it was a safe place for them. The Employment Appeal Tribunal agreed.
However, the Court of Appeal did not! It held that an employer’s purpose or motive is not relevant when seeking to establish whether or not an act amounts to a detriment. It found that the way the letters were framed clearly amounted to a detriment and, as the Trust did not reveal that some of Mr Jesudason’s complaints were justified, it was reasonable to treat the comments as damaging to his reputation and integrity.
However, that said, for Mr Jesudason’s claims to succeed, he also needed to be able to establish that the Trust had made the comments it had because he was a whistle-blower. At this stage, the Trust’s motivation became relevant. The Court of Appeal was satisfied that the purpose of the Trust’s letters was to rebut what the Trust thought to be grossly unfair misrepresentations and to limit the damage done by Mr Jesudason’s public disclosures. Therefore because the Trust had not acted as it did because Mr Jesudason had blown the whistle, Mr Jesudason’s claims did not succeed.
Whilst this case was very much decided on its own facts, it holds a stark reminder for employers. In seeking to defend themselves against misconceived or inaccurate statements made by whistle-blowers, employers should take care to ensure that their communications are factual (and could not be said to be misleading by omission) and that they do not say more than is necessary to protect the company’s reputation. If they do so, they could risk similar claims to those pursued by Mr Jesudason.