In a recent case called Day v Lewisham and Greenwich NHS Trust, Dr Day was a junior doctor who brought a whistleblowing detriment claim against his NHS Trust relating to statements it made following the settlement of an earlier whistleblowing case in 2018.
The Employment Tribunal found that while one of the Trust’s statements constituted a detriment, it was not caused by Dr Day’s protected disclosures, and that the remaining statements either were not detrimental or were true. It also held that Dr Day’s claim fell outside the scope of section 47B Employment Rights Act 1996 because the alleged detriments occurred after his employment had ended and were not in the employment field.
The Employment Appeal Tribunal (EAT) found that the tribunal erred in concluding the claim fell outside s.47B. It held that post-employment whistleblowing detriment claims can be brought where the detriment is closely related to employment, as in this case, where the Trust’s statements were made in the context of earlier tribunal proceedings about disclosures made during Dr Day’s employment.
The EAT also held that the tribunal erred by failing to consider whether the Trust’s refusal to amend or remove its statements after concerns from the CQC constituted a detriment.
However, these errors were immaterial. The EAT upheld the tribunal’s finding that the Trust’s actions were not materially influenced by Dr Day’s disclosures, and that the statements were motivated by media scrutiny and a desire to present the Trust’s perspective. As a result, the appeal was dismissed.