Whistleblowing protection and former employees
The EAT has confirmed that whistleblowing detriment protection can extend to former employees, but the claimant in this case still failed on causation.
Background
In the case of Day v Lewisham and Greenwich NHS Trust, Dr Day was employed as a junior doctor between 2013 and 2014. During his employment, he made a number of disclosures about patient safety and later brought a whistleblowing detriment claim against the Trust. That claim was settled without compensation, after which the Trust made a series of public statements in response to media interest. In 2019, Dr Day issued further proceedings, alleging that those statements were defamatory and amounted to post-employment detriments linked to his earlier protected disclosures.
The employment tribunal rejected the claim. It found that most of the statements did not amount to a detriment, and that those which did were not made because of the protected disclosures. The tribunal also concluded that the claim fell outside the scope of current whistleblowing protection, on the basis that the alleged detriments arose after employment had ended and were not “in the employment field”.
The EAT’s decision
On appeal, the EAT held that the tribunal had erred in two respects. First, it had failed to consider whether some of the Trust’s conduct, including its refusal to remove statements after concerns were raised by the regulator, amounted to a detriment. Second, it had been wrong to decide that the claim fell outside the scope of the statutory whistleblowing protection framework. The EAT confirmed that the statutory protection against whistleblowing detriment applies not only to current employees, but also to former employees where the alleged treatment is closely connected to their employment and protected disclosures.
Despite these errors, the appeal was dismissed. The tribunal’s findings on causation were decisive: the Trust’s statements were motivated by reputational concerns and media interest, not by Dr Day’s disclosures. As the disclosures did not materially influence the Trust’s actions, the claim failed.
Learning points for employers
The case is a reminder that whistleblowing protection does not necessarily end when employment does. Former employees may still bring detriment claims where the treatment they complain of is closely connected to their previous employment. However, the critical issue remains causation: employers will not be liable if they can demonstrate that their actions were not materially influenced by protected disclosures. Careful records of the reasons for decisions, and clear communication strategies when managing media interest or litigation, can help protect against such claims.