This was the issue considered by the Court of Appeal in Jesudason v Alder Hey Children's NHS Foundation Trust.
Jesudason was a consultant paediatric surgeon who made a number of allegations of wrongdoing to the Trust, several regulatory bodies and other third parties, including the media. There was a long and complex employment dispute involving mediation, injunction proceedings and Jesudason leaking confidential information to the media. In the end, Jesudason entered into a settlement agreement under which he resigned from his post.
Following the termination of his employment, Jesudason continued to make allegations of wrongdoing to the media and public bodies. In response, the Trust sent correspondence wholly rebutting his allegations both internally and to third parties. Despite the fact areas of concern had been identified following Jesudason's disclosures, the Trust's correspondence said that "each of [the] allegations have been thoroughly and independently investigated by different professional bodies on a number of occasions and found to be completely without foundation". The correspondence also stated Jesudason's actions were "weakening genuine whistleblowing".
Jesudason alleged the Trust's correspondence caused him reputational damage. He brought claims of whistleblowing, alleging he suffered post-termination detriment as a result of the disclosures made following his resignation.
The Employment Tribunal and the Employment Appeal Tribunal decided the Trust's correspondence did not constitute a detriment. Jesudason appealed to the Court of Appeal.
The Court of Appeal held the Trust's actions did constitute a detriment. However, the detriment was not on the grounds of Jesudason's protected disclosures but in order to minimise damage from his leaks of confidential information to the media. The Trust was not therefore liable to Jesudason for the reputational damage caused by its correspondence.
For employers, this case highlights the importance of making sure statements to the press are factually correct. It also provides some comfort that employers can set the record straight if the employee has gone public with their allegations (although each case will need to be looked at on its own facts).
For employees, it highlights the potential difficulties in bringing detriment claims when there is a war of words in the media, particularly if they have chosen to involve the media in the first place.