The Employment Rights Act 1996 provides a variety of protections to whistleblowing employees who disclose employment related malpractices.
A recent Employment Appeal Tribunal judgement has clarified that protection from detrimental treatment for whistleblowers is not limited to current employees, but can extend to former employees, provided the alleged detrimental treatment is closely connected to the ex-employee’s employment and the protected disclosures.
In this case, Dr Christopher Day was employed by Lewisham and Greenwich NHS Trust (the Trust) between 2013 and 2014. During his employment, Dr Day was concerned about patient safety and under staffing in the Intensive Care Unit and reported this to the Trust on several occasions.
After these disclosures, Dr Day alleges that he was unfairly dismissed by the Trust and so brought a claim in the Employment Tribunal (ET) alleging unfair dismissal and whistleblowing detriment. The claim was settled in October 2018.
Following the settlement, the Trust made a series of public statements in response to media interest around the case, prompting Dr Day to bring a new claim in the ET. Dr Day alleged that the statements made were defamatory and claimed the statements were detrimental actions in response to the protected disclosures he had made during his employment.
The ET found that only one of the alleged detriments suffered by Dr Day had been established but the Claimant had failed to establish ‘causation’ – in other words, that that the detrimental act was done in response to the whistleblowing disclosure. Furthermore, the ET found that the claim failed as the detrimental treatment occurred after Dr Day had left the Trust’s employment, stating that whistleblowing protection was reserved for employees.
Dr Day appealed to the Employment Appeal Tribunal (EAT) who found that the ET had been wrong to rule the claim was outside the scope of whistleblowing protection. The EAT confirmed that the statutory protection against whistleblowing detriment applies not only to current employees, but also to former employees where the alleged treatment is closely connected to their employment and the protected disclosures.
Despite this, the EAT dismissed the appeal finding that the ET’s conclusion on causation was correct, and the Trust’s statements were not motivated by Dr Day’s disclosures, but instead in response to media interest and reputational management.
Although this case arose in a different context, the same principles apply to rural businesses.
When dealing with whistleblowers, employers must ensure that they continue to respect the protections for whistleblowers even after the employee has ceased working for a company. Former employees can still bring detriment claims against the employer if the detrimental action is closely connected to their previous employment.
The EAT decision reconfirms the importance of causation to such a claim. Employers should keep and maintain careful records for any management of whistleblowers and decisions around actions and communications connected to them, even after employment. Maintenance of such records should put employers in a stronger position to demonstrate that any action deemed as detrimental, was not motivated by the whistleblowing.
