Employer trying to set record straight was not liable to whistleblower for damage to his reputation
The Court of Appeal has held in Jesudason v Alder Hey Children's NHS Foundation Trust when the former employer of a paediatric surgeon sent correspondence to Members of Parliament and the Care Quality Commission incorrectly stating that his public allegations of fundamental failings in the paediatrics department had been found to be wholly unsubstantiated, it was a detriment to him. However, critically, it was not a detriment because of his whistleblowing.
Mr Jesudason, the paediatric surgeon, made complaints to the Trust about what he considered were fundamental failings in how the paediatrics department was run. He also went to the press, and the Trust decided to convene a panel to consider whether his contract should be terminated. However, Mr Jesudason obtained a High Court interim injunction to prevent the Trust from doing so. At the subsequent trial, Mr Jesudason admitted that he had improperly provided documents, obtained through disclosure in legal proceedings, to Private Eye magazine. Following this he entered into a settlement agreement, pursuant to which he discontinued the High Court action, made a contribution to the Trust's legal costs and resigned from his post. He also agreed to discontinue claims he had initiated in the employment tribunal for detriment on the ground of having made protected disclosures.
In the interim the Trust had asked the Royal College of Surgeons (RCS) to review Mr Jesudason's complaints. The RCS concluded that the overall care provided did not fall below the general standard of acceptable practice, but it also found that in certain instances care was sub-optimal and clinical governance was weak. Mr Jesudason continued to make allegations of malpractice to third parties and the Trust sent correspondence rebutting his allegations. He then issued fresh employment tribunal claims, claiming that the correspondence was a detriment on the ground of his protected disclosures because it incorrectly stated that the allegations were wholly unsubstantiated.
The Court held that although the correspondence sent by the Trust constituted a detriment to Mr Jesudason, the critical issue was then whether the detriment was done on the ground of the protected disclosures. The Court concluded that it was not and that, instead, the Trust's objective was so far as possible to "put the record straight".
Take note: The decision in Jesudason will be of comfort to employers who wish to refute allegations that have been made public by reason, for example, of the whistleblower going to the press. Even if such action potentially harms the whistleblower's employment prospects the employer will not necessarily be liable under whistleblowing legislation. However, employers will need to ensure any public statements or statements to third parties are supported by appropriate internal investigations.