Was a tribunal right not to look at whether decision makers were manipulated by the views of others?
The Employment Appeal Tribunal (EAT) said yes in William v Lewisham and Greenwich NHS Trust.
Dr William was employed as a consultant paediatrician and neonatologist at University Hospital Lewisham. There were serious issues with the neonatology department including dysfunctional working relationships between the consultants. In particular, Dr William and another doctor, Dr Ezzati, had filed incident reports about each other’s clinical practice.
During a complex twin birth, there was a confrontation between the doctors. Dr Ezzati took two videos of some of what happened during that event and then posted it to a consultant WhatsApp group criticising Dr William. Shortly afterwards, Dr William complained to the Divisional Director making complaints and disclosures that draft guidelines she had written had been declined because Dr Ezzati was not ready with her contribution for the same and that she had not been given a handover by Dr Ezzati, which negatively impacted patient care. She also made a third disclosure about Dr Ezzati on the Hospital’s safeguarding system.
An investigation into the altercation between the two doctors was conducted by two independent staff members, one of whom decided to exclude Dr William from the hospital for two months. Just before she was set to return from her suspension, she was excluded again for allegedly being in breach of the terms of her suspension in that she had entered the hospital premises without permission. Dr William was eventually given a written warning for twelve months for the incident with Dr Ezzati on the basis that she had given incorrect information to the hospital about the altercation.
The tribunal held that the lack of handover was a protected disclosure, but Dr William’s concerns about the guidelines were not as she did not reasonably believe that health and safety was likely to be endangered.
However, the protected disclosure itself did not lead to the detriments alleged – the two acts of suspension and the written warning. The managers who had placed her on her two suspensions and given her a written warning did not know about the protected disclosure. They had focused on the altercation between Dr William and Dr Ezzati, when reaching their decisions.
The EAT agreed and relied on the EAT decision in Malik v Cenkos Securities Plc which said that you cannot transfer the knowledge and motivation of another employee to a decision maker when determining why the decision maker acted as they did.
This case demonstrates there has to be a clear causal link between the protected disclosure and the alleged detriment for a claim for whistleblowing to succeed. This is a high hurdle to overcome often because evidently it can be difficult to prove what is actually in the mind of a person when they reach a decision. This blog was written by Anita Vadgama, Partner at didlaw.
