How can employers protect both their reputation and whistleblower rights?

These statements are capable of being ‘detriments’ - contrary to whistleblowing legislation - even if the employer’s motive was to put its side of the story.

The employer’s motive in making such statements is a key factor the court will consider when assessing why the statement was made.  Unless the statement was made for a reason unconnected with the whistleblower’s disclosure, it will be an unlawful detriment.

This is what was decided by the Court of Appeal in the recent case of Jesudason v Alder Hey Children’s NHS Foundation Trust.

Background

Mr Jesudason was a Consultant Surgeon in the paediatrics department at Alder Hey children’s hospital. Throughout his employment, Mr Jesudason made a number of disclosures to hospital management, independent bodies and latterly the press regarding his concerns about the hospital. 

Some of these disclosures amounted to ‘protected disclosures’ or ‘whistleblowing disclosures’ under the Public Interest Disclosure Act 1998. As such, Mr Jesudason had the right not to be subjected to detriment on the ground that he had made these disclosures.

A report commissioned by the hospital found that expected standards had been met. However, the report made a number of recommendations for improvement, which the hospital subsequently implemented.  

Mr Jesudason continued to criticise the hospital, including improperly providing documentation to the press.

The hospital wrote a number of letters, setting out their view that the allegations raised by Mr Jesudason had been independently investigated and were unfounded. The letters accused Mr Jesudason of “weakening genuine whistleblowing” and claimed that all of Mr Jesudason’s allegations had been investigated and found to be “completely without foundation”.

Mr Jesudason brought employment tribunal proceedings, alleging he had suffered a whistleblowing detriment as a result of the disclosures that he had made. Mr Jesudason stated that the detriment was the letters sent by the Trust refuting the allegations he made; the hospital said it was simply putting its side of the story and this could never amount to a detriment.

Employment tribunal decision

An employment tribunal decided that

• the purpose of the letters was to set the record straight
• the hospital had not, therefore, subjected Mr Jesudason to a detriment; and
• the hospital was entitled to defend its position. 

Mr Jesudason appealed, but the Employment Appeal Tribunal agreed with the employment tribunal.  Undeterred, Mr Jesudason appealed to the Court of Appeal.

Court of Appeal decision

The Court of Appeal agreed with Mr Jesudason.

In saying that Mr Jesudason was “making up” the allegations and failing to mention the improvements, the Trust’s letter subjected Mr Jesudason to a detriment.

The hospital’s motivation i.e. protecting their reputation, was not relevant at this stage.

The question of motivation was only relevant when going on to decide whether the treatment in question was because of a whistleblowing disclosure – or for some other reason.

The hospital’s letters had not been sent to damage Mr Jesudason’s reputation, but to address any potential damage from his press statements – which had, themselves, been misleading. 

Therefore, Mr Jesudason had not been subjected to a whistleblowing detriment because the hospital’s letters were sent to protect its reputation; and were not intended to target Mr Jesudason.

What does this mean for employers?

This case demonstrates the need for caution when responding to press statements which could be covered by whistleblowing legislation.

Regardless of the motive, public statements which are not entirely accurate can be detrimental to the person who raised concerns. It is then necessary to show that the statement was not made in retaliation against the whistleblower, but was done for another reason, unconnected with the whistleblower’s concerns.

When responding to press stories which originate from an employee’s whistleblowing, employers should consider the following.

• Is it necessary to respond to the press report?
• Why is the statement being made? Is it to put the record straight or is it to discredit the whistleblower?
• Is the content of the proposed statement accurate and not misleading?
• If you are not sure whether a statement might be considered detrimental to a whistleblower, seek advice.

We will be discussing the practical issues which we find often arise when dealing with whistleblowing concerns in the next episode of our Employment Law Focus podcast which will be available shortly. Keep an eye on our podcasts page and our social media feeds to find out when it is available.

Contributors: Alastair Nokes and Sarah Maddock. 

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at February 2020. Specific advice should be sought for specific cases. For more information see our terms & conditions