Background
Rose Southam worked for Berkshire Healthcare NHS Foundation Trust from August 2015 and, from January 2017, served as a Lead Referral Coordinator. She resigned in March 2019 with effect from 11 April 2019 and brought Employment Tribunal claims alleging that she had suffered multiple detriments after making protected disclosures. She also claimed constructive unfair dismissal, including automatic unfair dismissal for whistleblowing.
The Employment Tribunal found, through its original and reconsideration decisions, that Southam had made three protected disclosures. It nevertheless dismissed all her claims because the alleged treatment either had not occurred, was not detrimental, or was not caused by her disclosures. On appeal, the remaining challenge concerned whether a note dated 14 December 2017 evidenced two further alleged disclosures, PD3 and PD9, and whether any error concerning those disclosures could affect the rejection of detriment complaints D2 and D9.2.
The Court’s Holding
The Employment Appeal Tribunal held that the Employment Tribunal had erred in its treatment of PD3 and PD9. As to PD3, the Tribunal had not adequately explained why information that clinicians’ prioritisation of administrative work caused patients to be seen later was insufficient to establish a qualifying disclosure. As to PD9, it was wrong to say that the 14 December note did not refer to inadequate staff induction and training, because the note substantially overlapped with the information Southam claimed to have disclosed.
Those errors did not affect the outcome. Regarding D2, the Tribunal had positively found that the failure to hold regular supervision meetings resulted from workload, Southam sometimes declining meetings, and other non-whistleblowing features of her working relationship with her supervisor. Regarding D9.2, the Tribunal had accepted that the recruitment process was poorly handled but found that the decision not to interview Southam was explained by another candidate’s direct experience and Southam’s lack of relevant experience, not by protected disclosures. Those findings left no room for PD3 or PD9 to have materially influenced either alleged detriment.
The EAT therefore dismissed the appeal from the liability decision. It also dismissed the appeal from the reconsideration decision, which the parties agreed was not affected by the surviving grounds.
Key Takeaways
- A disclosure must contain sufficiently specific factual information capable of being reasonably believed to show one of the statutory forms of wrongdoing.
- An Employment Tribunal must adequately explain why evidence does not establish a qualifying disclosure, particularly when contemporaneous documents substantially support the alleged disclosure.
- An error concerning protected-disclosure status will not justify remission where unchallenged factual findings conclusively establish that the alleged detriment occurred for reasons unrelated to whistleblowing.
Why It Matters
The decision distinguishes between an error in identifying a protected disclosure and a material error capable of changing the disposition of a whistleblowing claim. Even where a tribunal’s protected-disclosure analysis is deficient, an appeal may still fail if its findings on causation independently and conclusively defeat the detriment claims.
For practitioners, the judgment also highlights the importance of linking each alleged detriment to the particular disclosures pleaded as having influenced it. Disclosures not identified as causes of a specific detriment cannot later be used to disturb the outcome of that complaint.