Mr Edwin Jesudason v Alder Hey Children's NHS Foundation Trust

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeSir Patrick Elias,Lord Justice Baker,Lord Justice Henderson
Judgment Date31 Jan 2020
Neutral Citation[2020] EWCA Civ 73
Docket NumberCase No: A2/2018/1773

[2020] EWCA Civ 73

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

SOOLE J, MRS C. BAELZ AND MR B BEYNON

UKEAT/0248/16/LA

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Henderson

Lord Justice Baker

and

Sir Patrick Elias

Case No: A2/2018/1773

Between:
Mr Edwin Jesudason
Appellant
and
Alder Hey Children's NHS Foundation Trust
Respondent

Mr Andrew Allen (instructed on a Direct Access basis) for the Appellant

Mr Simon Gorton QC (instructed by Weightmans LLP) for the Respondent

Hearing dates: 19 and 20 November 2019

Approved Judgment

Sir Patrick Elias

Introduction.

1

Ever since the introduction of the Public Interest Disclosure Act 1996, the law has sought to provide protection for workers (colloquially known as “whistle-blowers”) who raise concerns or make allegations about alleged malpractices in the workplace. Too often the response of the employer has been to penalise the whistle-blower by acts of victimisation rather than to investigate the concerns identified. The 1996 Act inserted a new Part IVA into the Employment Rights Act 1996 designed to prevent this. The long title to the Act describes its purpose as follows:

“An Act to protect individuals who make certain disclosures of information in the public interest: to allow such individuals to bring action in respect of victimisation; and for connected purposes.”

The law which gives effect to the simple principle enunciated in the long title is far from straightforward. The basic principle, set out in section 47B of the Employment Rights Act, is that a worker has the right not to be subject to a detriment by any act of his employer on the grounds that he has made what is termed a “protected disclosure”. The main focus of this appeal is the appellant's claim that he was unlawfully victimised for whistle-blowing and that the courts below were wrong to find otherwise. He also makes a separate claim for race discrimination, also rejected in the courts below, which I consider at the end of this judgment.

The facts

2

The appellant, a Tamil of Sri Lankan origin, is an extremely distinguished paediatric surgeon specialising in surgery for birth defects and children's tumours. He was an Honorary Consultant working in the Department of Paediatric Surgery (“DPS”) at the Alder Hey Children's NHS Foundation Trust (“the Trust”) from 2006 until his resignation in 2012. He was simultaneously employed as an academic surgeon at the University of Liverpool. He has been highly critical both of the Trust management and of his consultant colleagues in the DPS. Between 2009 and 2014 he made a series of allegations to the Trust, various regulatory bodies and certain third parties, including organs of the media, in which he identified what he claimed were fundamental failings in the operation of the DPS. He was damning in his assessment of its work. The matters raised include very serious allegations of professional incompetence; the use of improper medical practices; deliberate attempts to mislead the legal process; and attempts to cover up wrongdoing and to gag the appellant himself from pursuing his complaints. In some cases specific individuals have been strongly criticised. The Trust has sought to deal with some of these allegations, as have a number of professional bodies, but not to the appellant's satisfaction. He says that it is because of the Trust's unwillingness to remedy these alleged failings that he has found it necessary to take his case to a wider audience.

3

In October 2014 the appellant lodged a series of claims with the Employment Tribunal (“ET”) alleging that he has suffered a number of detriments as a result of his legitimate whistleblowing activities. For reasons I will shortly explain, the claims relate only to alleged detriments suffered between 2013 and 2014 which was after he had resigned from the Trust. The ET heard extensive evidence over some seventeen days and considered the evidence in chambers for a further three days. It held that the appellant was an unreliable witness and had failed to make good any of his claims. The appellant appealed to the Employment Appeal Tribunal (“EAT”) (Mr Justice Soole) which dismissed the appeal on all grounds, concluding that there were no material mis-directions or other errors of law by the ET and that it had reached conclusions which were properly supported by the evidence. Permission to appeal to this court was given by Lewison LJ.

4

Although the alleged wrongdoing relates only to detriments allegedly suffered after the appellant's resignation in 2012, the appeal cannot properly be understood without setting the events in the context of the earlier period when he was employed.

5

There were tensions between the appellant and some of his consultant colleagues in the DPS almost from when he took up his post in 2006. These subsequently became so serious that they prompted a group mediation process in 2008 (the “Braun Process”). This was an informal attempt to resolve the differences conducted by an independent external psychologist. An important feature of this process was that it was conducted under Chatham House Rules which meant that the confidentiality of all disclosures made in the course of the mediation should be respected.

6

The Braun Process failed and subsequently, in March 2009, the appellant made the first of a number of protected disclosures which was triggered in part by the alleged improper treatment of a consultant colleague, Mr Ahmed. This was a letter sent to the HR manager at Liverpool University and which, with the appellant's permission, was also forwarded to the management at the Trust. It was not at that time seen by the other consultants in the DPS. The ET dealt with this letter in considerable detail (paras 43–54). The letter predominantly made allegations about incompetence, bullying, poor relationships, and the alleged jealousy shown to the appellant by other surgeons. It also raised issues relating to diversity (or lack of it) and training. The ET noted that the criticisms were often no more than expressions of opinion, unsupported by any evidence. The letter alleged that the poisonous atmosphere was having an adverse impact upon patient care. The appellant cited three cases which he described as “egregious disasters”. Despite being pressed to identify these cases, he did not do so.

7

In March 2010 the claimant went on a three year secondment to a children's hospital in Los Angeles. On one of his visits back to the UK he made a second protected disclosure in early January 2011. In this letter he identified a number of clinical matters, alleging that there had been clinical mis-judgments. Both this and the first protected disclosure made use of confidential information gleaned from the Braun Process. The Claimant also went to the press in late 2010 and early 2011 and this resulted in an article critical of the Trust in the Independent on Sunday.

8

In 2009 Mr Ahmed, also a Consultant under an Honorary Contract at the Trust, issued Employment Tribunal proceedings against the Trust which included claims of whistle-blowing and race discrimination. In the course of this litigation he had disclosed a redacted version of the March 2009 letter from the appellant and at that point an unredacted version was disclosed to some of the DPS consultants because they were witnesses in that action. This was the first they had seen of this letter. They took umbrage at the criticisms directed at them and were highly indignant that some of the allegations involved a breach of confidentiality. They considered that there was now an irrevocable loss of trust and were unwilling to continue to work with the appellant. In early 2012 Mr Richard Jones, at that time the Interim Director of Human Resources, set up an independent review with the aim of reconciling the parties but it was unsuccessful. The NHS surgeons – or many of them at least — remained unwilling to work with the appellant. Accordingly the Trust took steps to bring the appellant's honorary contract to an end.

9

In July 2012 the appellant obtained an interim injunction from the High Court to prevent the Trust from convening a panel to consider termination of his contract on the grounds of an irretrievable breakdown in relations between him and most of his consultant colleagues in the DPS. Thereafter he made further protected disclosures to the General Medical Council (“GMC”) and the Care Quality Commission (“CQC”) in October and November 2012 respectively.

10

At the High Court trial in December 2012, it transpired that the appellant had improperly provided to Private Eye documents obtained as a result of disclosure in the legal proceedings. The appellant admitted to having done this in the course of cross-examination, having previously categorically denied that he was the source of the leak. Following this admission, and as a result of this serious breach of duty, he entered into a Compromise Agreement under the terms of which he discontinued the High Court action, paid a substantial sum towards the costs of the Respondent, and resigned from his post with the Trust. He had by then also initiated whistleblowing claims in the ET; it was a term of the Compromise Agreement that he would discontinue these claims also.

11

As a result of the Compromise Agreement, the appellant cannot seek to rely upon any detriments allegedly suffered before the Agreement was reached. However, it is common ground that the Agreement does not stop him from alleging that he has suffered post-Agreement detriments on the grounds of having made pre-Agreement protected disclosures.

12

Meanwhile, in response to the 2009 and 2011 letters, together with a whistle-blowing complaint from Mr Ahmed, the Trust had asked the Royal College of Surgeons (“RCS”) to review the appellant's criticisms of the DPS. The RCS appointed four reviewers who...

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