The Employment Appeal Tribunal (EAT) has held in William v Lewisham and Greenwich NHS Trust that an employee's whistleblowing detriment claim, brought under s.47B of the Employment Rights Act 1996, failed because the employer had not subjected her to detriments on the ground that she had made a protected disclosure.
The claimant (W) worked as a consultant paediatrician for the Trust. She had a poor working relationship with another consultant, E, and both had filed incident reports about the other's clinical practice. On 30 July 2019 there was a confrontation between W and E, following which W emailed the Divisional Director and made a number of complaints. These included that guidelines she had written for feeding pre-term infants were dismissed by her manager, and there had been a lack of handover by E on 13 July 2019 that had a negative impact on patient care. The Deputy Medical Director for Performance and Professional Standards (H) decided to start an investigation of the 30 July incident (some of which was captured on E's phone) and W was suspended. The investigator, M, found that although W had provided an incorrect account of the incidents on 30 July she had not intended to mislead as she was upset at the time. H decided that the matter would go to a disciplinary hearing. This was conducted by a recent recruit to the Trust (P). Following the hearing, W was issued with a written warning for having provided incorrect information about the 30 July incident. W brought a claim under s.47B of the Employment Rights Act 1996 (ERA) that she was subjected to detriments on the ground that she had made protected disclosures.
The tribunal dismissed her claim. It held that W's complaint about the rejection of her guidelines was not a protected disclosure as she did not have a reasonable belief that it tended to show that the health or safety of any individual had been, was being or was likely to be endangered. This complaint was about the unjustified dismissal of her work, rather than the effect on patients of a lack of guidelines. Her complaint about the lack of a handover, however, was a protected disclosure because it tended to show a health and safety risk. Despite this finding, the tribunal found that the detriments relied on by W (i.e. the decision to suspend her, subject her to investigation and issue her with a written warning) were not materially influenced by the handover disclosure. Although H's decision to progress to a disciplinary hearing was arguably harsh, particularly following the finding that there had been no intention on W's part to mislead, H's focus was on the 30 July incident and not on the complaint regarding lack of handover (which was the complaint which qualified as a protected disclosure). The tribunal criticised P's decision to issue a written warning but did not believe that W's protected disclosure had an influence on her decision. She was a new member of staff and had come to the matter afresh; there was no basis to find that the shortcomings in her decision were linked to the protected disclosure.
The tribunal rejected a submission based on the Supreme Court's decision in Royal Mail v Jhuti that, even if the decision makers were not directly motivated by protected disclosures, they were manipulated by persons who were so motivated. It considered itself bound by the EAT's decision in Malik v Cenkoc Securities plc where it was held that, in a claim under s.47B ERA, if an individual who makes a decision which inflicts a detriment did not know of protected disclosures and therefore could not have been materially influenced by them, the knowledge and motivation of another individual who influenced the decision-maker cannot be ascribed to the decision-maker. It also noted that applying different rules in dismissal claims under s.103A (Jhuti was a case which dealt with an unfair dismissal by reason of making a protected disclosure) and detriment claims under s.47B "was explicable because the claimant in the latter may bring a claim against the alleged manipulator whilst the claimant in the former may not".
On appeal W argued, among other things, that the decision in Malik was wrong in light of the decision in Jhuti. The EAT dismissed the appeal, holding that there was no reason to depart from the decision in Malik. The decision in Jhuti dealt with the meaning and purpose of s.103A (unfair dismissal) and not with that of s.47B (detriment).
Take note: This decision provides confirmation that the approach adopted in Jhuti will only apply to whistleblowing dismissals, rather than detriment claims. Where detriment claims under s.47B are concerned, the decision in Jhuti won't be relevant as it will still be possible for a claim to be brought against the alleged manipulator.
