News - CoA considers causation & the reach of s.43G in Jesudason v Alder Hey Childrens NHS Foundation Trust

Employment & Discrimination - Simon Gorton QC

Mr Jesudason was a consultant paediatric surgeon for the Trust. Between 2009 and 2014, he made a number of allegations to the Trust, several regulatory bodies and other third parties, including the media. These allegations related to serious failures and wrongdoing in the operation of his Department at the Trust. Following the termination of his employment, Mr Jesudason brought claims of whistleblowing. His claims were dismissed by the ET and the EAT. Giving the sole judgment in the Court of Appeal, Sir Patrick Elias dismissed Mr Jesudason’s appeal.

Were the Claimant’s disclosures protected disclosures?

Mr Jesudason sent communications to Channel 4, the BBC, the BMA and the European Association of Paediatric Societies (EAPS). He also sent a letter to the Public Accounts Committee Chair, with copies of the letter sent to various recipients including the Health Secretary and the CQC. Each communication contained similar information relating to criticisms of the Trust.

The Trust accepted the disclosure to the CQC fell within s.43F as the CQC is a prescribed body. The other disclosures fell under s.43G as they are ‘other cases’. Although communications to an MP now fall within s.43F, that was not the case when the communications were sent.

The ET held none of the disclosures in the ‘other cases’ complied with s.43G(1)(e), namely the requirement that “in all the circumstances of the case, it is reasonable for him to make the disclosure”. When considering this question, the ET had regard to the s.43G(3) factors, in particular s.43G(3)(c) “whether the relevant failure is continuing or is likely to occur in the future”. The ET noted that the Royal College of Surgeons had investigated the Claimant’s allegations and considered the issues were unlikely to recur.  It was also found that some of the Claimant’s complaints related to false accounts of his resignation and an incorrect allegation that he was offered a six figure sum to keep quiet.

The Court of Appeal held, “in the light of the ET’s findings in the round about the complaints for the most part being old and/or false, it is in my judgment fanciful to believe that the ET might have found any of the communications relied upon to be reasonable. A worker cannot expect to have protection for a host of complaints unjustifiably brought to the attention of the media or other influential third parties on the basis that amongst them there is one issue which it might have been reasonable to disclose. A whistle-blower must take some responsibility for the way in which complaints or concerns are framed, and the requirement of reasonableness in section 43G enables an ET to refuse to give protection to irresponsible disclosures.” [49]

The Claimant argued that since the content of the letter was a protected disclosure with respect to the CQC, the content must be protected with respect to other recipients as well. This would include those who were forwarded the disclosure by email. The CoA agreed with the EAT’s rejection of this argument: “the argument is fallacious. It would wholly undermine the carefully structured safeguards in the legislative scheme if copies of a letter are to be treated as protected disclosures with respect to all recipients merely because there is a protected disclosure with respect to one of them” [67]

Did the Claimant suffer detriment as a consequence of a protected disclosure?

A number of the alleged detriments related to communications sent by the Chairman of the Trust to parties in response to the Claimant’s comments about the Trust’s failures to those parties. In a number of these communications, it was claimed Mr Jesudason’s actions had been reported to the GMC and amounted to “weakening genuine whistle-blowing”. It was also claimed Mr Jesudason’s allegations had been thoroughly and independently investigated and found to be without foundation. However, a report conducted by the Royal College of Surgeons had identified areas of concerns following the complaints. Despite this, the ET and EAT held Mr Jesudason’s standing was not affected as the purpose of the communications was to put the record straight. The Court of Appeal disagreed, finding that observations about a whistleblower do “not cease to be a detriment because of the employer’s purpose or motive” [61]. Whilst the purpose is relevant when considering causation, the ET and EAT were wrong to consider the issue of causation when considering whether the Claimant had been subjected to a detriment. In this case, Mr Jesudason had suffered detriment.

Was a reason for the Trust taking the action that caused the detriment the fact the Claimant had made a protected disclosure?

The disclosures all arose out of communications that were a response to the Claimant’s disclosures to third parties. The Court noted that an employer is entitled to rebut protected disclosures and any misleading statement in this rebuttal will not necessarily be because the person made a protected disclosure. However, the Court held that, on the facts, the ET was entitled to find that causation had not been made out. The Trust was acting for the purpose of nullifying the adverse consequences of the partially misleading information the Claimant put in the public domain. The Trust “was concerned with damage limitation; in so far as the appellant was adversely affected as a consequence, it was not because he was in the direct line of fire” [73].

Simon Gorton QC was instructed by Weightmans for the respondent Alder Hey Children's NHS Foundation Trust. 

To view the full judgment, please click here. 

 

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