Day v Lewisham and Greenwich NHS Trust
Day v Lewisham & Greenwich NHS Trust [2025] EAT 123
Facts
Dr Christopher Day (the Claimant/Appellant) was employed by Lewisham and Greenwich NHS Trust (the Respondent) as a specialist registrar between 2013 and 2014, during which time he made several protected disclosures concerning patient safety. In October 2014, Dr Day brought a whistleblowing claim (the "2014 claim") against the Trust, alleging unfair dismissal and whistleblowing detriment. This claim, which attracted significant media attention, was settled in October 2018 after Dr Day had given evidence. The settlement included an "Agreed Position Statement" which indicated that the Tribunal was "likely to find that both the Trust and HEE acted in good faith towards Dr Day following his whistleblowing and that Dr Day has not been treated detrimentally on the grounds of whistleblowing". The settlement involved no financial payment from the Trust and was not confidential.
Following the settlement, the Trust published several statements on its website and communicated with various parties, including Members of Parliament and public officials, between October 2018 and January 2019. Dr Day subsequently brought a new claim (the "2019 claim") alleging that these statements and actions constituted a detriment on the ground of the protected disclosures he had made during his employment. His complaints included that the Trust had: published false and defamatory statements regarding the settlement discussions (specifically denying cost threats and asserting his legal team initiated settlement due to the case not going well); misrepresented findings of an external investigation; incorrectly linked his disclosures to other issues; deliberately failed to remove or update public statements after concerns were raised by the Care Quality Commission (CQC); and circulated untrue and detrimental material to MPs and public officials.
During the 2019 claim proceedings, Dr Day also raised serious concerns about the Trust's disclosure process, alleging failures to preserve evidence, destruction of emails (including 90,000 by a Mr Cocke), late disclosure of key documents (such as a board meeting note and letters to stakeholders), and inconsistencies in witness evidence. He applied to strike out the Trust's response due to these issues, which the Employment Tribunal (ET) refused, stating that a fair trial was still possible and that it could make inferences.
Held
Employment Tribunal (ET) Liability Judgment
The ET dismissed Dr Day's whistleblowing claim. It found that only one of the alleged detriments (issue 4.1(a)(iii), concerning the Trust's statement that it had decided not to pursue costs before Dr Day withdrew his case) was established. However, the ET concluded that this detriment, and indeed all other actions, were not caused by Dr Day's protected disclosures. Instead, the ET found that the statements were made "in response to the media interest in this case, and a desire to put the Trust’s side of the story," essentially a "PR battle" to protect the Trust's reputation and address negative publicity, with the protected disclosures having "no material influence" on how the statements were drafted. The ET also concluded that Dr Day's claim fell outside the scope of section 47B of the Employment Rights Act 1996 (ERA), as the alleged detriments occurred after the employment relationship ended and were not "in the employment field".
Employment Tribunal (ET) Costs Judgment
Despite finding the Trust's conduct regarding disclosure to be "unreasonable" and acknowledging that it led to extra hearing days, the ET dismissed Dr Day's application for costs. It found that it would not be "just and equitable" to award costs due to Dr Day's own unreasonable conduct in conducting the case, specifically his excessively long witness statements and his tendency to "re-run the 2014 case" instead of focusing on the actual issues, which significantly prolonged the hearing and increased costs for the publicly funded Trust.
Employment Appeal Tribunal (EAT) Decision
The EAT dismissed Dr Day's appeal. While generally upholding the ET's findings on detriment and causation, the EAT identified two errors of law by the ET:
The ET failed to determine whether the Trust's refusal to remove public statements after concerns from the CQC constituted a detriment (issue 4.3).
The ET wrongly concluded that the claim fell outside section 47B ERA (the "in employment" issue). The EAT held that the claim did fall within the "employment field," applying the rationale of Woodward v Abbey National Plc and a logical extension of Tiplady v City of Bradford MDC, as the detriment arose from and was closely connected to the past employment relationship and related employment tribunal proceedings.
However, the EAT found these errors to be immaterial to the overall outcome. The EAT concluded that even if the ET had correctly found that the refusal to remove statements after CQC concerns was a detriment, the ET would still have inevitably found that it was not materially influenced by Dr Day's protected disclosures, as the Trust's reasoning for maintaining the statements was based on its confidence in their accuracy and a desire to counter negative publicity. Therefore, the fundamental finding that causation was not established meant Dr Day's whistleblowing claim would have failed regardless of these errors. The EAT also upheld the dismissal of the costs application, affirming that the ET's reasoning was within its discretion, having considered the "whole picture" of both parties' conduct.
Comment
Whistleblowing - Post-Employment Detriment
This case provides several important insights into Whistleblowing - Post-Employment Detriments:
Causation remains a critical hurdle
The "material influence" test for causation in whistleblowing claims (whether the protected disclosure significantly influenced the employer's action) is strictly applied. Even if a detriment is found, the claimant must prove a direct causal link to the protected disclosure, not merely that the detriment occurred after the disclosure. Here, the ET's finding that the Trust's actions were driven by a "PR battle" and a desire to protect its reputation, rather than the protected disclosures themselves, was decisive.
Scope of "in employment" protection post-termination
The EAT clarified that whistleblowing protection under Section 47B ERA does extend to former employees for detriments arising from and closely connected to the employment relationship and previous employment tribunal proceedings related to those disclosures. This affirms the principle from Woodward v Abbey National Plc and provides a valuable distinction from Tiplady v City of Bradford MDC [2020] I.C.R. 965, where the detriment was unrelated to the employment capacity. This ensures former employees are not subject to impunity for acts of retribution.
Impact of Disclosure Failures
While the Trust's serious disclosure failures were acknowledged and heavily criticised by the ET, and could have led to adverse inferences, they did not automatically result in the claim succeeding or a cost award against the Trust. The ET's ultimate decision on causation was found to be sufficiently supported by other evidence and witness credibility, which the EAT deferred to.
Cost Awards and Discretion
The judgment underscores that cost awards in employment tribunals are discretionary and not the norm. Tribunals will consider the "whole picture" of both parties' conduct. Even if one party's conduct is unreasonable, the unreasonable conduct of the party seeking costs can offset or negate the justification for an award. This case serves as a reminder to claimants to keep their evidence focused and proportionate to the issues at hand to avoid incurring additional costs that may then be held against them in a costs application.
"Truth" as a defence to detriment
The EAT addressed the points of whether a "true" statement can be a detriment, noting that a "literally true" statement can be detrimental in certain circumstances, citing Croydon Health Services NHS Trust v Beatt [2017] I.C.R. 1240. However, in this specific case, the Claimant's pleaded detriment was based on the statements being "false and defamatory," which narrowed the ET's inquiry to their objective truthfulness.
