ATTRIBUTING ANOTHER PERSON'S INTENT…
WHEN DETERMINING WHISTLEBLOWING DETRIMENT
ATTRIBUTING ANOTHER PERSON'S INTENT…
WHEN DETERMINING WHISTLEBLOWING DETRIMENT…
No, this is not just another clever (?) rhyming couplet, but a summary of the main issues which came up in the recent EAT decision in William v Lewisham and Greenwich NHS Trust.
The appellant claimed unlawful detriment on grounds of whistleblowing, contrary to s. 47B ERA 1996 and, following a 5-day hearing in June 2022, the Employment Tribunal published its decision on 6 July 2022, dismissing the appellant’s complaints. The appellant appealed to the EAT.
Facts
The appellant, Dr Therese Mary William was a Consultant Paediatrician and Neonatologist at University Hospital Lewisham, where she worked with Dr Ezzati. They did not get along. (That is putting it mildly. They had in fact each filed incident reports about the other’s clinical practice.)
On 30 July 2019 a dispute arose between the appellant and Dr Ezzatii, and a confrontation was partially filmed by Dr Ezzati on her mobile phone. Dr Ezzati then posted the footage to a consultant WhatsApp group, criticising the appellant.
On 2 August 2019 the appellant emailed the Divisional Director, Dr Joanna Lawrence twice and posted details of the 30 July incident on the respondent’s safeguarding system. The emails contained the following disclosures which the appellant would claim amounted to protected disclosures:
“My guideline [a document compiled by the appellant in 2018 relating to the feeding of pre-term infants] I spent 4 months writing was dismissed by declined by Dr Obi as [Dr Ezzati] was not ready with her contribution, without caring about patients, and the audit we did confirmed that our NEC rates is higher than average national rates, and we had few deaths following babies inappropriately fully fed within 2 days by [Dr Ezzati].” [NEC is necrotising enterocolitis, a serious illness and relatively common surgical emergency affecting new-born babies]
“On 13th [July], I had no Handover at all after [Dr Ezzati] finishes her week, which had negative implications on patients care, and this never dealt with, I put an incident form and it was advised to close it without any investigations.” The Appellant said that the lack of handover had the effect of leaving a chickenpox alert on the neonatal ward.
“We usually handover in advance, and send handover sheet to the overtaking consultant, I have done that when I finished my week, as I felt it is my responsibility to do so. This never happen when [Dr Ezzati] finished her week.”
Following the 30 July incident:
Dr Lawrence asked Dr Obi to find out what had happened;
Dr Obi looked into the incident and suggested an independent investigation;
Dr Harding, Deputy Medical Director for Performance and Professional Standards decided there should be MHPS (Maintaining High Professional Standards) investigation, and suspended the appellant;
Dr McCall was tasked with carrying out the MHPS investigation;
On 2 October 2019, a further incident report relating to the 30 July incident was filed by Bryan Charlton, Head of Information Governance and Assurance, but recorded on the system as coming from the appellant;
On 7 October 2019 the appellant submitted a grievance;
Dr Harding assumed that the appellant had been on site, in breach of her suspension, to file the report, and, on 8 October 2019 suspended her again (she’d been due to have her first post-suspension clinic on 11 October 2019);
The respondent decided to deal with the appellant’s grievance as part of the MHPS investigation;
On 25 November 2019 it became apparent that the appellant had not filed the further incident report, but she remained suspended until 7 January 2020;
On 25 January Dr McCall’s report found the appellant had provided an incorrect account of the 30 July incident but had not intended to mislead as she was upset at the time. No other allegations against the appellant were upheld (although she found that the team was dysfunctional, leading to poor communications);
On 12 February Dr Harding told the appellant there was a case to answer regarding the provision of misleading information, and a disciplinary hearing would be convened;
On 24 February the appellant updated her grievance to include bullying and harassment complaints;
On 22 April 2020 the disciplinary hearing was convened by Helen Peskett who had recently joined the respondent as Divisional Director of Operations, Surgery and Cancer;
On 5 May 2020 Ms Peskett issued a written warning to the appellant for providing incorrect information regarding the 30 July incident;
On 24 June 2020 the appellant’s appeal was rejected by Rachael Backler , Director of Performance;
On 9 September 2020, the appellant was informed by Professor Andrews, Interim Divisional Medical Director, that parts of her grievance were upheld including her allegation that Dr Ezzati had called her a liar. Other parts were not upheld;
On 26 October 2020 an appeal hearing took place and Kate Anderson, Director of Corporate Affairs upheld the grievance decision.
The dates and the number of different people involved at the various stages of this matter are relevant.
Protected disclosures
The Employment Tribunal found that only the disclosure about the lack of handover on 13 July 2019 amounted to a protected disclosure, tending to show that health and safety had been, was being or was likely to be endangered.
The complaint about rejection of the appellant’s feeding guidelines was not a protected disclosure. It was mainly complaining about a perceived unjustifiable rejection of work the appellant had done, rather than raising concerns about health and safety (even if “without caring for patients” might suggest a health and safety concern). The disclosure does not raise concerns about any inferiority with existing guidelines that had been adopted by the respondent.
The allegation regarding NEC rates was not a protected disclosure because, the ET found that the appellant did not reasonably believe it tended to show that health and safety had been, was or was likely to be endangered. It misrepresented the audit conclusion and was wrong to say there had been a “few deaths” (there had been one death , and no suggestion that Dr Ezzati’s feeding regime was to blame). The appellant knew all of this, having been integral to the audit, so she could not reasonably hold the belief the disclosure tended to show endangerment to health and safety.
Detriments
The Employment Tribunal found that the decisions to suspend the appellant and not lift the suspension until 20 January 2020 were detriments, as was the decision to subject the appellant to the MHPS investigation and issuing her with a written warning.
However, these detriments were not “on the grounds of” the one and only protected disclosure relating to handover. The suspensions, failure to lift suspension and initiation of the MHPS investigation were all focussed on the 30 July incident. Dr Harding preferred a manager’s account rather than the appellant’s account, and he initiated the MHPS investigation so that someone else would take ownership of the decision. None of these decisions were motivate by the protected disclosure.
The written warning was just a bad decision, affected by material errors, but, again, it was not motivated by the protected disclosure. Indeed, Ms Peskett had no links with the handover - she too was focussed on the 30 July incident.
So far, so bad for the appellant. Only one alleged disclosure was found to be a protected disclosure, and this was confined to a very narrow issue. Furthermore, none of the treatment found to be a detriment was found to be motivated by the protected disclosure. The appellant sought to attribute motivation from people who were not the detriment decision makers. Effectively, she tried to import the reasoning from the decision in Royal Mail Group v Jhuti [2019] UKSC 55, [2020] ICR 731, in which the Supreme Court held that a dismissal should be ruled unfair under section 103A of the Employment Rights Act 1996 where a person superior to the claimant in the hierarchy of the organisation determined that they should be dismissed because they had made one or more protected disclosures but hid this behind an invented reason, and the decision maker, unaware of that motivation, adopted the invented reason.
Here, the EAT found that the Employment Tribunal had been entitled to apply the decision of the EAT in Malik v Centros Securities plc EAT/0100/17 which held that, in a claim under section 47B of the Employment Rights Act 1996, if an individual who makes a decision which inflicts a detriment did not know of protected disclosures and therefore could not have been materially influenced by them, the knowledge and motivation of another individual who influenced the decision maker cannot be ascribed to the decision maker.
Ultimately (1) the appellant did not have a reasonable belief that the relevant parts of her allegedly protected disclosures tended to show that the health or safety of any individual had been, was being or was likely to be endangered and (2) the making of any disclosures by the appellant did not have a material influence on the decisions of the respondent which were detrimental to her.
To be clear, Jhuti can be distinguished from detriment cases because Jhuti was a case about dismissal and dismissal can only be effected by the employer, so any manipulating motivation behind the dismissal must be taken into account. In detriment claims, if a claimant believes someone has been manipulating a decision maker, they have the right to bring a claim for unlawful detriment against any such individual manipulator, which Dr William had conspicuously failed to do.