UK: Whistleblowing – whether employer is liable for damage to whistleblower’s reputation

Mr Jesudason, a consultant surgeon, made complaints to the Trust and subsequently made a further disclosure to the Trust, regulatory bodies and the media, alleging clinical misjudgements. When the relationship between Mr Jesudason, his colleagues and the Trust deteriorated further, he resigned and entered a settlement agreement under which he discontinued court proceedings against the Trust. However, he continued to make allegations to third parties which prompted the Trust to make statements rebutting those allegations.

Mr Jesudason brought a tribunal claim alleging that the Trust’s statements, which incorrectly stated that his allegations were “completely without foundation”, constituted a detriment on the grounds of his protected disclosures. His claim was rejected by the Tribunal and EAT.

The Court of Appeal said that a detrimental observation about a whistleblower will be a detriment, regardless of the employer’s motive – and ruled that Mr Jesudason had clearly suffered a detriment. That said, the Court concluded that the detriment was not on the grounds of any protected disclosures. So even though the Trust’s statements contained some misleading information which constituted a detriment to him, it did not mean that the reason for making those statements was that Mr Jesudason had made the protected disclosure.

Practical point
Where a whistleblower has made disclosures to the media or regulatory bodies, the employer won’t necessarily be liable under the whistleblowing legislation if it seeks to set the record straight and responds in kind, even if the rebuttal may damage the employee’s reputation.
An employee may be able to rely on detriments that occur after a settlement agreement is signed, on the basis of protected disclosures that were made before that agreement.

Jesudason v Alder Hey Children’s NHS Foundation Trust https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCA/Civ/2020/73.html&query=(Jesudason)+AND+(v)+AND+(Alder)+AND+(Hey)+AND+(Children’s)+AND+(NHS)+AND+(Foundation)+AND+(Trust)

For more information on these articles or any other issues involving labour and employment matters in the United Kingdom, please contact Robert Hill (Partner) at Clyde & Co at robert.hill@clydeco.com or visit www.clydeco.com.

For more information please contact Joseph Granato, Communications Manager at L&E Global at joseph.granato@leglobal.org.