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Home / News and Insights / Blogs / Employment Law / 232: Denying allegations – is an employer liable for damage to a whistleblower’s reputation?

A worker has the right not to be subjected to any detriment by their employer because they have made a protected disclosure (Employment Rights Act 1996, section 47B). In Jesudason v Alder Hey Children’s NHS Foundation Trust (the Trust), the Court of Appeal considered whether a whistleblower’s claim that his former employer’s attempts to publicly set the record straight about his allegations amounted to detrimental treatment.

Mr Jesudason was a consultant paediatric surgeon for the Trust. Between 2009 and 2014 he made a number of allegations of malpractice to the Trust and third parties, including regulatory bodies and the media. His disclosures included confidential information. During subsequent High Court proceedings to restrain the Trust from terminating his contract, it emerged that Mr Jesudason had provided confidential documents to Private Eye magazine and he subsequently resigned from his post. In response to the resulting media furore, the Trust wrote to various third parties setting out its position. These letters falsely stated that each of Mr Jesudason’s allegations had been thoroughly and independently investigated and found to be completely without foundation. The Trust also failed to acknowledge that an independent report on Mr Jesudason’s complaints had recommended a number of improvements which had been implemented.

Mr Jesudason brought a whistleblowing detriment claim alleging that the Trust’s communications to the media and other third parties had caused damage to his reputation. The Employment Tribunal and the Employment Appeal Tribunal (EAT) held that there was no detriment because the purpose of the communications was to put the record straight and defend the Trust’s position, and no reasonable employee would have considered the comments to be detriments.

Although the Court of Appeal has now also dismissed Mr Jesudason’s appeal, it held that the reasoning of the Tribunal and EAT was flawed. The Court of Appeal held that detrimental observations about a whistleblower do not cease to be a detriment because of the employer’s motive. Contrary to the Tribunal’s finding, Mr Jesudason had clearly suffered detriment due to the way the Trust’s letters were framed. However, the Trust’s motive was relevant to the issue of causation. Crucially, the detriment was not caused by Mr Jesudason’s protected disclosures but by the Trust’s desire to minimise harm from the potentially damaging and sometimes misleading information which he had chosen to put in the public domain.    

This case is unusual because the employee’s alleged detriments arose out of the employer’s response to the protected disclosures he had made to various media outlets and other third parties. The Court of Appeal stressed that an employer is entitled to rebut protected disclosures, and any misleading statements in that rebuttal will not necessarily be on the grounds of the protected disclosure. Here, the employer had been able to demonstrate that its main purpose was damage limitation and correcting the misleading information the employee had put into the public domain.

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