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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> William v Lewisham and Greenwich NHS Trust (WHISTLEBLOWING, PROTECTED DISCLOSURES) [2024] EAT 58 (24 April 2024) URL: https://www.bailii.org/uk/cases/UKEAT/2024/58.html Cite as: [2024] EAT 58, [2024] ICR 1065, [2024] WLR(D) 193 |
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Fetter Lane, London, EC4A 1NL |
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B e f o r e :
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DR THERESE MARY WILLIAM |
Appellant |
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- and - |
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LEWISHAM AND GREENWICH NHS TRUST |
Respondent |
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Robert Moretto (instructed by Capsticks LLP) for the Respondent
Hearing date: 13-14 February 2024
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Crown Copyright ©
SUMMARY
WHISTLEBLOWING, PROTECTED DISCLOSURES
There was no error of law in the Employment Tribunal's findings that (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.
This Tribunal applied the decision of the EAT in Malik v Centros Securities plc EAT/0100/17 where Choudhury P 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. Malik is not inconsistent with 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.
An application by the Appellant to rely on a document which was not available to be adduced at the hearing below was refused because it did not satisfy the second of the criteria in Ladd v Marshall [1954] 1 WLR 1489 i.e. it was not probable that it would have had an important influence on the result.
THE HONOURABLE MR JUSTICE BOURNE:
Introduction
1. The ET erred by holding that the Appellant did not have a reasonable belief that her disclosure concerning the failure to adopt guidelines tended to show that the health or safety of any individual has been, is being or is likely to be endangered.
2. The ET erred in its construction of the disclosure concerning NEC Rates, wrongly assessed the Appellant's credibility and the accuracy of the disclosures and hence held that the information the Appellant conveyed was at odds with the information in the audit.
3. The ET erred by failing to properly apply the statutory test of causation for detriments, and in holding that it was bound by Malik v Cenkos Securities plc (EAT/0100/17), and hence failed to take into account whether the motivations of Dr Ezzati and Dr Obi were materially influenced by the Claimant's protected disclosures, and further failed to determine whether their actions materially influenced the series of detriments the Respondent imposed on the Claimant.
4. The ET erred by failing to properly apply the material influence test in determining whether the decisions to exclude the Appellant and then to subject the Appellant to MHPS investigations and a sanction, were done on the ground of the Appellant's evidential based protected disclosure, concerning Dr Ezzati compromised patients' care by failing to handover patients on 13 July 2019.
Factual background
1. "My guideline 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]."
2. "On 13th August, 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.
3. "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."
The ET's decision
1. The Appellant's complaint about the lack of a handover by Dr Ezzati on 13 July 2019 (to which I shall refer as "the handover disclosure") was a protected disclosure because it tended to show that health and safety had been, was being or was likely to be endangered.
2. The Appellant's complaint about the rejection of her feeding guidelines was not a protected disclosure because she did not reasonably believe that it tended to show that health and safety had been, was being or was likely to be endangered. The "force" of her complaint was about the unjustifiable dismissal of the work she had done, rather than the effect on patients of a lack of guidelines. Before the Appellant's guidelines were completed, the department had identified other guidelines to be adopted, and the Appellant did not suggest that using the guidelines from King's College Hospital or the East of England was endangering or would endanger health and safety.
3. The Appellant's allegation about NEC rates was not a protected disclosure because she did not reasonably believe that it tended to show that health and safety had been, was being or was likely to be endangered. She did not state the outcome of the audit accurately, in that the audit did not find that the Respondent's rate of NEC was above national rates; it found instead that it was higher than rates in higher income countries in general. It was also not accurate to say that there had been "a few deaths" following shortcomings in treatment by Dr Ezzati. Only one death was referred to in evidence, and there was no corroborating evidence that Dr Ezzati's feeding regimes were responsible for it, and a clinical reviewer had found nothing wrong with Dr Ezzati's practice. So any belief by the Appellant that the information tended to show a relevant failure or danger was not objectively reasonable.
4. The Respondent subjected the Appellant to a detriment by its decisions to exclude her, and not to lift the exclusion until 7 January 2020, and to subject her to the MHPS investigation. She was not subjected to a detriment when Dr Harding merely told her on 2 January 2020 that the investigation could result in dismissal (but not, as she alleged, that she would be dismissed). Ms Peskett also did not make any threat of dismissal.
5. Although the decisions to exclude the Appellant and to subject her to the MHPS process were not reasonable, they were not motivated to any extent by the fact that she had made the handover disclosure. Dr Harding was much more focused on the incident of 30 July 2019, and also the matter had been presented to him as a concern about the Appellant and his practice, good or bad, was to prefer the account of a manager to that of a subordinate. Dr Harding's decision to proceed to a disciplinary hearing was harsh, in view of Dr McCall's findings, but was motivated by his wish for someone else to take ownership of the decision.
6. The decision to issue the written warning was a bad decision which had been affected by material errors. However, Ms Peskett had no links with the 13 July handover and was focused on what happened on 30 July. This detriment was not motivated to any extent by the protected disclosure.
The Law
"(1) In this Part a 'qualifying disclosure' means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following—
…
(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,
…
(d) that the health or safety of any individual has been, is being or is likely to be endangered,
… ."
"(1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.
(1A) A worker ("W") has the right not to be subjected to any detriment by any act, or any deliberate failure to act, done—
(a) by another worker of W's employer in the course of that other worker's employment, or
(b) by an agent of W's employer with the employer's authority, on the ground that W has made a protected disclosure.
(1B) Where a worker is subjected to detriment by anything done as mentioned in subsection (1A), that thing is treated as also done by the worker's employer.
(1C) For the purposes of subsection (1B), it is immaterial whether the thing is done with the knowledge or approval of the worker's employer.
(1D) In proceedings against W's employer in respect of anything alleged to have been done as mentioned in subsection (1A) (a), it is a defence for the employer to show that the employer took all reasonable steps to prevent the other worker—
(a) from doing that thing, or
(b) from doing anything of that description.
…
(2) This section does not apply where—
(a) the worker is an employee, and
(b) the detriment in question amounts to dismissal (within the meaning of Part X).
… "
Ground 1
The parties' submissions
"Trust perinatal mortality is high compared to other London LNU Trusts. Although the underlying population risk is likely to be a major factor, system-wide maternity and neonatal issues across the South East London LMNS may also contribute to any excess perinatal mortality. This requires some Lewisham and Greenwich Trust ownership and review in conjunction with South East London LMNS and Public Health colleagues."
"d. Trust to investigate excess perinatal mortality for LGT via the SEL LMNS, maternity services and local public health teams.
e. Ensure cross site neonatal medical guidelines are implemented consistently on both sites.
f. Investigate and resolve consultant leadership behaviour in the UHL neonatal unit, particularly with respect to feedback from junior doctors."
Discussion
"145. … In determining reasonableness of the claimant's belief, the tribunal took into account the claimant's submissions during her grievance which expressly date [sic] dealt with the guidelines issue. The claimant titled this section as 'undermining and dismissing my work (enteral feeding guidelines).' She went into some detail in the history of feeding guidelines in 2018. She stated that she had raised that the unit did not have any guidelines in use. Dr O suggested using King's College Hospital guidelines when the claimant was partway through writing her guidelines. Dr O then, following a conversation with Dr E, decided that the unit would adopt the East of England guidelines, thereby in effect dismissing the claimant's work on drafting guidelines. The claimant characterised this incident as bullying by Dr E.
146. The tribunal did not find that the claimant reasonably believed that disclosing information about the guidelines tended to show that health and safety had been, was being or was likely to be endangered. The reasons for this were as follows. Before the claimant had completed her guidelines, the department had identified other guidelines to be adopted. The force of the claimant's complaint about guidelines in the grievance was not that the guidelines from King's College Hospital or the East of England were endangering health and safety, but rather that her contributions were unjustifiably dismissed. The claimant did not state in her grievance that the East of England guidelines were inferior, still less that they could endanger health and safety.
147. Secondly, the Tribunal considered the rates of NEC. Did the claimant reasonably believe that the comments she made about the respondent's rates of NEC tended to show that health and safety had been, was being or was likely to be endangered? Again, the tribunal reminded itself that it must show respect for the claimant's specialist knowledge, in particular in the area in which she had run an audit, the respondent's rates of NEC.
148. The difficulty was that the claimant did not state the outcome of the audit accurately. (This was an audit that the claimant had conducted with Junior Doctors into the respondent's rates of NEC.) This had happened some time prior to the events material to this claim. According to PD1, the respondent's NEC rate was higher than national rates. However, according to the documents and the claimant's evidence before the tribunal, this is not what the audit found. The audit found that the respondent's rate was higher than the rates in higher income countries in general. It did not find that the rate was higher than the average in the UK.
149. The Tribunal did not accept the respondent's submissions that there can never be a reasonable belief if there is no evidential basis for a disclosure. However, if there is not an evidential basis, this makes it far harder for the claimant to establish a reasonable belief, particularly in an area of her specialist expertise. On the facts, the tribunal did not find that the claimant had an objectively reasonable belief that the information disclosed about NEC rates tended to show that health and safety was endangered, because the evidence on which she relied did not show this. She was responsible for the audit and she would have been familiar its results and methodology. This was not a case where she had misunderstood a study conducted by another clinician.
150. The third part of the potential disclosure was the information that there had been 'a few deaths' following Dr E's shortcomings in treatment. The difficulty again was that this was not an accurate statement. In cross-examination, the claimant did not say that there was more than one death. In the view of the tribunal there was a considerable difference between one death and "a few deaths," particularly in a relatively brief time period and within a single department. Again, the claimant could not have misunderstood the numbers because she worked in the department and was intimately involved in outcomes. Further, there was no corroborating evidence that Dr E's feeding regimes were responsible for the single death. Whilst the Tribunal reminded itself that it should have respect for the claimant's expertise, it noted that a clinical reviewer had found nothing wrong with Dr E's practice.
151. In the view of the Tribunal, whilst the claimant had some genuine concerns about NEC rates and the guidelines she had spent time drafting, PD1 was an email sent in the context of a dysfunctional and unhappy working relationship with Dr E, which had just come to a head on 30 July. The claimant was angry and this led to exaggeration. The tribunal could not find that she had an objectively reasonable belief that this information tended to show a proscribed failure as she was aware that the information was not accurate. Accordingly, this did not amount to a protected disclosure."
Ground 2
The parties' submissions
"The Claimant's reference to 'average national rates' was a reference to the unfavourable statistics findings of the NEC study, in the content of the Claimant's disclosure, which was that there was '10% NEC incidence, Vs recent systematic R/V found 2-7% NEC rates across high income NICUs' (Page 37 ASB). The NEC audit drew on a meta study carried out by a British Professor of Neonatal medicine in London (UK), about the NEC rates across numbers of Organisation for Economic Co-operation and Development (OECD) countries. The NEC audit also drew on another study which proved that inappropriate feeding preterm babies causes advanced NEC where the mortality rates approach 100% and emphasised that proper feeding guidelines are a powerful measure to reduce NEC by 87%, and hence it was essential to reduce the neonatal mortality rates at the Respondent which were found to be 5% higher than the national rates."
Discussion
Grounds 3 and 4
The ET's reasoning
"165. In the view of the Tribunal, Dr Harding concentrated only on the claimant because he had been asked to investigate the claimant and because Dr O had, in effect, come down on Dr E's side and against the claimant. The incident was referred to Dr Harding by the Divisional Director in respect of the claimant only.
166. In the view of the Tribunal, Dr Harding saw that there was clear dysfunction in the relationship between Dr E and the claimant. Separating Dr E and the claimant was a quick and simple solution. There was an obvious concern that this relationship was deteriorating and things might get a good deal less manageable if they continued to work together. Dr O was backing Dr E. So the claimant, who was the subject of the referral, was the obvious one to be suspended."
"172. Dr Harding suspended because firstly the Divisional Director in her email suggested the disciplinary route and not mediation. This strongly influenced Dr Harding's approach. He started by considering this as a disciplinary matter against the claimant only. Secondly, rightly or wrongly, he had practice of preferring the word of the manager over that of the subordinate. When it came to the extension, he was under pressure from the claimant's colleagues. Put simply, it was easier for Dr Harding to exclude the claimant and extend her exclusion, than to step back and consider if the respondent's approach was even-handed or reasonable.
173. Further, the handover disclosure was far from Dr Harding's focus. The fact that Dr Harding had exaggerated concerns about the claimant (for instance his references to violence) indicated that it was the incident on 30 July, which was the reason he suspended, rather than anything else. The handover disclosure was significantly overshadowed by what Dr Harding considered to be the most important matters - the 30 July incident.
174. Finally, the Divisional Director viewed the 13 July incident as a matter of consultants failing to work together to effect handovers, and it is hard to see why Dr Harding, as a Senior Manager, would be so concerned at a single handover going wrong."
182. However, the tribunal found that the protected disclosure did not have a material impact on his decision for the following reasons. Dr Harding instigated the MHPS for broadly the same reasons as he excluded the claimant. This was how the matter was originally presented to him – as a concern about the claimant. His practice was to prefer the account of a manager to that of a subordinate. Whilst the tribunal did not find that the decision to instigate the MHPS was reasonable in the circumstances, there was no basis to link it to the disclosure about the handover on 13 July. Dr Harding was not focused on the handover, but on the incident on 30 July.
183. The tribunal saw the decision to proceed to a disciplinary hearing as part of the MHPS detriment. Dr Harding's decision to progress to a disciplinary hearing was arguably harsh, particularly following Dr McCall's findings. Dr McCall had found the claimant did give an inaccurate account, but the claimant believed it at the time, i.e., she had not deliberately misled.
184. In the view of the Tribunal, however, Dr Harding made the decision because he wanted someone else to take ownership of the decision, particularly in light of the pressure from Dr O. Further, the decision to go to a disciplinary was taken in January 2020 and it is even less that Dr Harding would be affected by the claimant's making a disclosure about a single handover on 13 July by this time. In effect, too much water had passed under the bridge since then. Dr Harding's focus was on the 30 July incident and, although Dr McCall had found that the claimant had not deliberately misled the respondent, she had found that the claimant's account was not accurate."
"189. The Tribunal did not find that this was a good decision. It was a decision which was not fully supported by the evidence. Ms Peskett made material errors. However, there were grounds for Ms Peskett to reach her conclusion on the information before her. Dr McCall's account established that the claimant's account was inaccurate.
190. The difficulty for the tribunal in drawing the necessary inferences was that Ms Peskett was a new member of staff. She had no links with the 13 July handover or, indeed, to any events between Dr E and the claimant. She came to the matter afresh. She was not a doctor. She was not involved professionally. There was no reason the protected disclosure would have had an impact on Ms Peskett's decision. Ms Peskett was focused, as shown by the minutes of the meeting, on what happened on 30 July. The tribunal could find no basis to find that the shortcomings in Ms Peskett's decision were linked to the protected disclosure about a single handover 9 months before, in circumstances where the entire focus of the hearing was on the events of 30 July."
The parties' submissions on ground 4
Discussion
The parties' submissions on ground 3
Discussion: ground 3
The effect of the causation finding on grounds 1 and 2
Conclusion