Your employer dismissing your concerns publicly can itself be a detriment.
“Court of Appeal found the trust's public rebuttal was capable of being a detrimentAny action your employer takes that puts you at a disadvantage, short of dismissal. In a whistleblowing or discrimination context, being moved to a worse role, excluded from meetings, or given an unfa..., but the claim failed on causation.”
A dismissive or misleading response to your protected disclosureThe legal term for a qualifying whistleblowing report. For a disclosure to be protected it must relate to specific categories of wrongdoing, you must reasonably believe it is true, and in most cases i... can count as a detriment, even without financial harm.
- You do not need to prove financial or physical harm to show you were subjected to a detriment. Feeling unfairly treated because of how your concern was handled can be enough.
- Raise concerns through proper internal channels first and keep a written record, since how and where you raised something can affect whether it is protected.
- If your employer's public or internal response misrepresents what actually happened, get advice on whether that amounts to a detriment before deciding how to respond.
The situation
A hospital consultant surgeon raised a series of concerns over several years about patient safety failures in his department. He raised these both internally and with outside bodies, including regulators and, in some cases, the media. The trust responded by telling staff and outside organisations that his concerns had been fully investigated and found to be false, even though a later independent review found that some of what he had raised had substance.
What the court found
The Court of Appeal held that the trust's public response was capable of being a detriment under section 47B of the Employment Rights Act 1996The primary piece of legislation setting out employees rights in the UK, including the right not to be unfairly dismissed, the right to a written statement of employment particulars, and rights relati..., because it failed to fairly or accurately acknowledge that some of the surgeon's complaints were justified. An employer is allowed to defend itself robustly, but doing so does not excuse giving an unfair or misleading account of the outcome. The claim still failed overall, because the tribunal found the trust's real motive was to limit the damage from disclosures made to the media, which were not protected, rather than to punish the protected disclosures themselves.
Jesudason v Alder Hey Children's NHS Foundation Trust [2020] EWCA Civ 73