Do decision makers need to have knowledge of a protected disclosure to establish a whistleblowing claim?

This was considered in the case of William v Lewisham & Greenwich NHS Trust, which serves as a useful reminder of how important it is that managers making decisions are not influenced or guided too heavily by HR team members or other staff members in senior positions; any decisions taken should be made based on the decision-makers own views and understanding.

In this case, the question arose as to whether decision makers had been influenced by protected disclosures made by Dr William about a colleague.

Background

Dr William (“W”) had worked as a consultant paediatrician and neonatologist at the University Hospital Lewisham from 2018.

In August 2019 W made three disclosures to the Divisional Director about Dr Ezzati (“DE”). One of the three disclosures was held, by the tribunal, to amount to a protected disclosure which related to a complaint from W that on 13 July 2019 she had received no handover from DE which had a negative impact on patient care (“13 July handover disclosure”).

In July 2019 an incident occurred when a complex twin birth was expected in the department. There was a confrontation between W and DE which DE recorded on her mobile phone and later posted on a consultant WhatsApp group criticising W.

This led to W being excluded (suspended) and investigation commenced under Maintaining High Professional Standards (MHPS).

The MHPS investigation found that W had provided an incorrect account of the events of 30 July 2019 incident but that she did not intend to mislead as she was upset at the time.

W was informed in February 2020 that there was a case to answer, and that this would proceed to a disciplinary hearing.

The disciplinary was conducted by Helen Peskett (“HP”) who had recently joined the Trust and HP issued W with a written warning on the basis that she had provided incorrect information about the incident on 30 July. W appealed but this was upheld.

W brought a claim in the Employment Tribunal alleging that she made several protected disclosures and had been subject to detriments because she raised the protected disclosures.

The Legal Bit

Workers have the right not to be subjected to any detriment by their employer (or a fellow worker) on the grounds that they have made a qualifying disclosure. Further, if an employee is dismissed and the reason for the dismissal is that they made a protected disclosure then the dismissal will be automatically unfair.

The Employment Tribunal’s decision

The following were found by the Employment Tribunal to have amounted to detriments:

1. The decision to exclude W twice and not to lift the exclusion until 7 January 2020 as well as the decision to subject W to an MHPS investigation. These decisions were taken by DH.
2. The decision to issue the written warning which was taken by HP.

However, crucially, the tribunal found that, whilst these decisions did amount to a detriment, the decisions were not made because of the 13 July handover disclosure, as had been alleged by W.

Ultimately, whilst the tribunal was very critical of the decisions taken, they found that DH and HP were not motivated by the disclosure but rather because of the 30 July incident. DH was also held to have been motivated by his practice of preferring the account of DO as a manager rather than that of a subordinate as well as being motivated by someone else to take ownership of the ultimate decision.

It is therefore important for decision-makers to act with impartiality when reaching decisions and, to be really clear, as to the reasons for the decision and that the underlying information they have received is accurate and has not been manipulated.

Appeal

W appealed the decision to the Employment Appeal Tribunal (“EAT”) on a number of grounds including that the tribunal was incorrect in applying the case of Malik v Centros Security plc and should have applied the case of Royal Mail Group Ltd v Jhuti. The Supreme Court in Jhuti held that even if the decision maker was not directly motivated by the protected disclosure they were manipulated by the people who were motivated by the disclosure.

The appeal was not successful. The EAT held that the tribunal had been correct in applying Malik. There remains a distinction between unfair dismissal claims and detriment claims when assessing the reason for the decision. The Jhuti case was an automatic unfair dismissal case and the Malik case was a detriment claim. The EAT held that there was no reason to depart from the existing authority of Malik, which provides that if the decision maker (in a detriment claim) did not know about the disclosure the knowledge and motivation of a third party cannot be attributed to the decision maker.

Comment

Ultimately, this case highlights the decision makers being clear as to why they are taking a particular decision and not simply acting as ‘puppets’ for others who want a particular outcome. It is important for decision makers to document the rationale of their decisions together with references to supporting documentation to evidence the decision making process.