Case study: William v Lewisham & Greenwich NHS Trust
In the case of William v Lewisham & Greenwich NHS Trust, the EAT has reiterated that in a claim for detriment arising from whistleblowing, only the knowledge and motives of the decision maker are relevant to the Employment Tribunal’s considerations.
The Facts of William v Lewisham & Greenwich NHS Trust
Section 47B of the Employment Rights Act 1996 (“ERA”) gives workers the right not to be subjected to any detriment by their employer on the grounds of having made a protected disclosure (“whistleblowing”). Detrimental treatment can include being denied promotion, harassing behaviour, and being subjected to disciplinary proceedings or dismissal.
Dr William was a consultant neonatologist employed by Lewisham and Greenwich NHS Trust. She had made disclosures of information to the Trust about alleged failures to properly handover matters and to follow feeding guidelines, which had resulted in a chickenpox alert on the neonatal ward, as well as alleged unprofessional conduct by her colleagues.
Following these disclosures, there was an altercation between Dr William and a colleague, as a result of which Dr William was subjected to an MHPS investigation (“Maintaining High Professional Standards in the Modern NHS” – the national framework which governs the investigation of concerns into doctors’ conduct or capability). This led to Dr William being excluded from work premises for a prolonged period of time.
Following an investigation, a disciplinary process was initiated, at the conclusion of which the Trust issued Dr William with a 12-month written warning for misconduct.
Employment Tribunal claim
Dr William subsequently brought a whistleblowing detriment claim under section 47B ERA 1996, alleging the disciplinary sanction of a 12-month written warning was a detriment to which she had been subjected because she had made protected disclosures. The Employment Tribunal rejected her claim, finding the detriment (disciplinary action) was motivated by the altercation, and not the protected disclosures.
The Employment Tribunal found that Dr William’s disclosures about colleagues failing to follow her feeding guidelines and engaging in unprofessional conduct did not qualify as protected disclosures because she did not reasonably believe they tended to show dangers to health/safety or breaches of legal obligations. The Tribunal also concluded that the decision-makers who subjected Dr William to disciplinary sanction had not been aware of her disclosures and therefore were not motivated by them when issuing the sanction.
Appeal
Dr. William appealed the Employment Tribunal’s decision to the Employment Appeal Tribunal (“EAT”). She argued that, even if the decision makers in the MHPS investigation and disciplinary process had not been directly motivated by her disclosures, they had nevertheless been manipulated by people who were influenced by her disclosures.
The EAT dismissed Dr William’s argument and found no error of law in the Employment Tribunal’s approach. In short, the EAT confirmed that if a decision-maker is unaware of any protected disclosure made by the worker, the motivations of others who may influence the decision-maker cannot be attributed to the decision-maker.
Key Takeaways
This judgment serves as a useful reminder that the knowledge and motivation of another person cannot be attributed to a decision-maker where the decision-maker is unaware of the disclosure. It highlights the importance of appointing independent investigators and decision-makers in any process following when a protected disclosure has been made. This will reduce the risk of a finding that the decision-maker’s decision was influenced by the protected disclosure.
Contact us
Isobel Davis is a solicitor in our employment law team. If you have any questions about any of the points discussed in this article, or need legal advice, contact our team today.