Whistleblowing: Court Of Appeal Holds Employer Not Liable For Making A False Statement To Third Parties About A Whistleblowing Ex-Employee

An employer who made a damaging false statement about a whistleblowing ex-employee to third parties in an attempt to set the record straight was not liable for whistleblowing detriment.

THE FACTS

Mr Jesudason is a paediatric surgeon who worked at the Alder Hey Children's NHS Foundation Trust. He was highly critical of the Trust and of his colleagues and made a series of serious allegations to the Trust and to various regulatory bodies and third parties, including the media, which he later claimed were disclosures protected by whistleblowing legislation. The Trust asked the Royal College of Surgeons (RCS) to investigate allegations made by Mr Jesudason about his department. The RCS report concluded that overall the care given by the department was acceptable but it made suggestions for improvements and found failings in the way that the Trust had managed Mr Jesudason's whistleblowing.

The relationship between Mr Jesudason, the Trust and his colleagues deteriorated further. Following court proceedings, during which it transpired that he had lied about leaking documents to Private Eye, Mr Jesudason resigned.

Mr Jesudason brought an employment tribunal claiming alleging that he had suffered a detriment as a result of having made whistleblowing allegations. He also brought race discrimination claims (which are not covered in this alert).

The employment tribunal found that allegations Mr Jesudason had made to two MPs, the Trust and to the Care Quality Commission were disclosures which were protected by whistleblowing legislation.

In response to Mr Jesudason's allegations, the Trust's Chairperson had sent letters to third parties setting out the Trust's position. In particular, he sent out letters stating that "each of Mr Jesudason's allegations have been thoroughly and independently investigated by different professional bodies on a number of occasions and found to be completely without foundation", and that Mr Jesudason's actions were "weakening genuine whistleblowing". These comments did not accurately reflect the findings in the RCS report. Mr Jesudason claimed that these comments (among others) constituted a whistleblowing detriment because they were damaging to his standing and reputation. The employment tribunal did not agree with him. It held that, as the Trust was defending its position, no reasonable employee could have considered the comments to be detriments.

Mr Jesudason's whistleblowing claim in the employment tribunal therefore...