In this case the EAT upheld an employment tribunal's decision to dismiss an employee's whistleblowing detriment claim, because the employer's actions were not materially influenced by the protected disclosure.
Background and Facts
Under whistleblowing laws workers have the right not to be subjected to any detriment by their employer (or a fellow worker) on the grounds that they have made a qualifying disclosure. In addition, under a separate protection, if an employee is dismissed and the reason for the dismissal is that the employee made a protected disclosure, the dismissal is automatically unfair.
The claimant, Dr William, was a consultant paediatrician and neonatologist at Lewisham and Greenwich NHS Trust ("the Trust"). Dr William had a poor relationship with one of her colleagues, Dr Ezzati, each having filed incident reports about the other's clinical practice. Dr William made several complaints about the lack of adoption of her feeding guidelines and the high rates of necrotising enterocolitis among neonates at the hospital. She also complained about the lack of a handover by Dr Ezzati on one occasion. The Trust excluded her from work and investigated a concern that she had provided misleading information about an incident involving Dr Ezzati, under the Maintaining High Professional Standards (MHPS) framework, which resulted in a sanction of a final written warning.
Dr William brought a whistleblowing claim in the employment tribunal. She claimed that she had made several protected disclosures under the whistleblowing legislation and that she had been subjected to various detriments by the respondent as a result. The Trust denied that Dr William had made any protected disclosures, or that any of its decisions were influenced by them.
The tribunal found in favour of the Trust and the EAT rejected Dr William's appeal. Essentially they found that Dr William had made a protected disclosure (her complaint about the lack of a handover) and that she was subjected to detriments, but the Trust had not subjected her to detriments on the ground that she had made the protected disclosure. The tribunals found that the Trust's decisions to exclude her and subject her to the MHPS investigation were not motivated by the protected disclosure, but by other factors such as the breakdown of working relationships and the need to protect patient safety.
Dr William had argued that actions of other doctors, who knew of the protected disclosure had influenced the Trust in subjecting her to detriments. Dr William relied on the Royal Mail Group v Jhuti case, that an employer could still be liable where the decision-maker did not know about the protected disclosure, but was manipulated to dismiss by a person superior in the hierarchy of the organisation, who did know of it. However, the EAT rejected this argument on the basis that the Jhuti case was an automatic unfair dismissal case, not a detriment case and therefore would not be relevant here.
What this means for employers
The case illustrates the importance of distinguishing between the context and the reason for treatment in whistleblowing cases. The focus will be on why the decision-maker acted as they did. Employers should therefore keep clear and contemporaneous records of their decision-making process and the factors that influenced their actions, particularly where there is a disciplinary investigation or disciplinary action is to be taken, so they can demonstrate that this is not being done because the employee has "blown the whistle".
