Case law: Employer’s defence to whistleblower’s allegations could amount to unlawful detriment against the whistleblower

Employers responding to a whistleblower’s allegations should be careful about what they say in their defence, as their statements could amount to an unlawful detriment against the whistleblower.

A surgeon made whistleblowing allegations, both while he was employed and after he had left, about supposed failures by his employer, some of which were supported by an independent report.

His employer wrote several letters defending itself in which it claimed that the surgeon’s allegations were ‘weakening genuine whistleblowing’ and that they had been ‘thoroughly and independently investigated by different professional bodies on a number of occasions and found to be completely without foundation’.

The surgeon alleged that this amounted to subjecting him to a detriment because of his whistleblowing, which is unlawful.

The Court of Appeal agreed, saying that what an employer said in its defence to whistleblowing allegations could amount to a detriment, irrespective of the employer’s motive – for example, if the employer called the whistleblower a liar or troublemaker.

Operative date

• Now

Recommendation

• Employers responding to a whistleblower’s allegations should be careful about what they say in their defence, as their statements could amount to an unlawful detriment against the whistleblower.

Case ref: Jesudason v Alder Hey Children's NHS Foundation Trust [2020] EWCA Civ 73