Allegation that colleague was taking patient's food amounted to whistleblowing


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The Employment Appeal Tribunal (EAT) has held in Elysium Healthcare No 2 Ltd v Ogunlami that a health worker suffered a whistleblowing detriment where he alleged that his supervisor was taking a patient's food, and was subsequently moved to a different site and sent a threatening email

The claimant made his complaint in October 2015 and asked for the matter to be investigated. The staff handbook emphasised the importance of not overstepping relationship boundaries with patients and also stated that it was not acceptable to accept gifts from patients. Although the matter was investigated, the claimant was concerned about the objectivity of the investigation as it was being carried out within the team while his supervisor was still in charge. He wrote to HR about his concerns, and then wrote again in March 2016 about the lack of follow-up to his previous complaints. On 9 June 2016 he received an email response from the director of the hospital which effectively warned him off pursuing the matter further. Meanwhile in December 2015 he was moved from the site where his supervisor worked to another site, a move which was unplanned and unexpected.

The claimant claimed that he had been subjected to detriments for having made a protected disclosure. The EAT, agreeing with the tribunal, held that he had suffered a whistleblowing detriment. It was clear that the claimant's complaint was an allegation that his supervisor was guilty of a breach of a legal obligation, even though it hadn't been referred to in those terms. It was also clear that the tribunal had found that the claimant had a subjective belief in the public interest nature of his disclosure.

Take note: If a worker alleges that a fellow worker has committed a wrongdoing, employers should always proceed with caution. Provided that the allegation amounts to a breach of a legal obligation (in this case a breach of contract) and also has a public interest element (in this instance the potential mistreatment of vulnerable patients) it will amount to a protected disclosure.

This article is taken from HR Law – July 2019

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