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• Speaker #0

  Today in the Lefebvre HR and Employment Law podcast, we're discussing the judgment in the case of Day and Lewisham and Greenwich NHS Trust, in which the Employment Appeal Tribunal was asked to determine whether a doctor suffered a post-employment detriment after having brought whistleblowing claims against the NHS Trust he had worked for. In this case, a doctor brought claims of unfair dismissal and whistleblowing against his NHS Trust employer. in late 2014 and early 2015, relating to his time employed by the Trust as a specialist registrar in medical training. While employed by the Trust, the doctor made a number of protected disclosures relating to patient safety at the hospital where he worked. The Trust accepted that the doctor had made protected disclosures, and during the course of the final hearing of his claims, the parties reached an agreement on settlement. The settlement included an agreed position statement, setting out that claims had been brought by the doctor there. that the doctor had made protected disclosures and had performed a public service in doing so, that the tribunal was likely to find that the trust had acted in good faith towards the doctor following the disclosures and that the doctor had not been treated detrimentally. After the settlement had been agreed, the trust made statements on its website and in communications to third parties, which the doctor felt amounted to detriments, and he brought further claims against the trust. The trust maintained that the statements it made after the settlement were not detriments. and that they were made in response to what it perceived to be adverse comments in the press, which had a negative impact on the trust itself. The doctor's claims were dismissed by a tribunal, which found that the trust's statements, save for one, were either not detrimental or were true. With regard to the statement that it considered detrimental, it found that the trust's motive for making that statement was not the doctor's disclosures. It also found that the alleged detriments happened after the doctor's employment had ended, and were not in the scope of his employment, and therefore that the claims fell outside the protection of the whistleblowing legislation, in any event. The doctor appealed to the Employment Appeal Tribunal. The Employment Appeal Tribunal found that the tribunal had made a number of errors, one being that the doctor's claims were not covered by the whistleblowing legislation. It noted that whistleblowing claims can be brought in respect of detriments which occur after employment has ended, so long as the detriment is closely related to the previous employment relationship. Given the alleged detriments in this case related to tribunal proceedings regarding protected disclosures made during the doctor's employment, the detriment and the doctor's employment were sufficiently closely related to be protected. However, the Employment Appeal Tribunal held that this and other errors made by the tribunal were immaterial to the outcome and that the doctor's claims would have failed in any event. In particular, it found that the causal connection between the making of the protected disclosures and the detriments complained of was not established. Rather, the statements had been made in response to what the Trust perceived to be negative press coverage and was an attempt to counterbalance this by presenting its perception of events. Accordingly, the appeal failed. Look out for further episodes in this series to stay up to date on all things HR and employment law related.