Employment & Pensions Blog: Whistleblowing Protection for Former Employees

The recent Employment Appeal Tribunal (EAT) judgment in Day v Lewisham and Greenwich NHS Trust offers valuable clarification on whistleblowing protections under section 47B of the Employment Rights Act 1996 (ERA), particularly around post-employment detriments.

Facts

Dr Christopher Day was employed as a specialist registrar by Lewisham and Greenwich NHS Trust between 2013 and 2014. During his employment he made several protected disclosures relating to patient safety. In October 2014, he brought a whistleblowing claim against the Trust, alleging unfair dismissal and detriment, which was eventually settled in October 2018. Notably, the settlement was not confidential and involved no financial compensation. It included a public “Agreed Position Statement” stating that Dr Day had not been treated detrimentally for whistleblowing and that both the Trust and Health Education England had acted in good faith.

2019 Claim

Following the settlement, the Trust made several public statements between October 2018 and January 2019 and communicated with Members of Parliament and public officials. Dr Day brought a second claim in 2019, alleging these actions amounted to post-employment detriments arising from his earlier protected disclosures.

He alleged the Trust had:

• Published false and misleading statements about the 2018 settlement;
• Misrepresented findings from an external investigation;
• Linked his whistleblowing to unrelated issues;
• Failed to amend or remove inaccurate public statements despite concerns from the CQC;
• Circulated misleading information to public figures.

Dr Day also raised serious concerns about the Trust’s conduct during the 2019 proceedings, including alleged destruction of 90,000 emails, late disclosure of key documents, and inconsistent witness evidence. He applied to strike out the Trust’s defence, which the Employment Tribunal refused.

Employment Tribunal Decision: No Causation

The Tribunal found that only one alleged act, a statement denying any cost threats during settlement discussions, actually amounted to a detriment. However, it ruled that none of the detriments were materially influenced by Dr Day’s protected disclosures.

Instead, the Tribunal concluded that the Trust’s actions were motivated by reputational concerns and intense media scrutiny, namely a "PR battle" rather than retaliatory conduct. Crucially, the Tribunal also held that Dr Day’s claim fell outside section 47B ERA, as the alleged detriments occurred post-employment and were not "in the employment field."

Despite serious disclosure failures by the Trust, the Tribunal declined to strike out its defence or award costs, noting that both parties had engaged in conduct that prolonged the hearing.

EAT Appeal

Dr Day appealed to the EAT. The EAT identified two errors of law in the Tribunal’s judgment:

1. The Tribunal failed to determine whether the Trust’s refusal to remove public statements following CQC concerns constituted a detriment, and
2. The Tribunal wrongly concluded that the claim fell outside the scope of section 47B ERA.

The EAT clarified that whistleblowing protections can extend beyond employment (i.e. where the employment relationship has ended), where the detriment arises from or is closely connected to the employment relationship or related Tribunal proceedings.

However, the EAT concluded that these errors were not material to the outcome. The key issue remained causation, and the Tribunal had lawfully found that the Trust’s actions were not materially influenced by the protected disclosures, namely causation was not established. The appeal was therefore dismissed.

Comment

This case reinforces the principle that whistleblowing protections under section 47B ERA can extend post-employment but also highlights the practical challenges claimants face in establishing causation. The claimant must prove that a detriment was materially caused by their protected disclosures. For employers, it shows the need to approach post-employment communications with care, particularly when commenting publicly on former employees who have made whistleblowing allegations.

Importantly, a whistleblowing detriment claim can, in principle, also include post-termination losses where those losses are attributable to detriments suffered before the end of employment. Whether such losses are recoverable will depend on the specific facts and evidence of each case.

For more information, please contact a member of our Employment Team.