William v Lewisham and Greenwich NHS Trust
| Jurisdiction | UK Non-devolved |
| Neutral Citation | [2024] EAT 58 |
| Year | 2024 |
| Court | Employment Appeal Tribunal |
2024 Feb 13, 14; April 24
Employment - Protected disclosure - Detriment - Causation - Consultant subjected to detriments having made disclosures relating to fellow consultant’s working practices - Tribunal finding one disclosure protected but having no impact on relevant decisions - Whether tribunal bound by Employment Appeal Tribunal decision to refuse to consider whether decision-makers influenced by motivation of others - Whether appeal tribunal decision manifestly wrong given subsequent decision of Supreme Court -
The claimant worked as a consultant paediatrician at a hospital run by the respondent and had a poor working relationship with another consultant, with each filing incident reports about the other’s clinical practice. One confrontation resulted in an investigation and led to the claimant’s exclusion from the hospital. The investigation found that, although the claimant had provided an incorrect account of the incident, she had not intended to mislead. Nevertheless, it was decided to proceed to a disciplinary hearing, following which the claimant was issued with a written warning. The claimant brought proceedings before an employment tribunal under section 47B of the Employment Rights Act 1996F1, claiming that she had been subjected to detriments because she had made protected disclosures. The tribunal found that the claimant had made one protected disclosure, but that it had had no material impact, for the purposes of section 47B(1), on the decision-makers when taking the actions complained of. The tribunal considered itself bound by a decision of the Employment Appeal Tribunal that it was not permissible, on a claim under section 47B, to import the knowledge and motivation of another to the decision-maker in considering the reason for a decision, rejecting a submission by the claimant, based on a decision of the Supreme Court in relation to section 103A, that, even if the relevant decision-makers had not been directly motivated by her protected disclosures, they had been manipulated by persons who were so motivated. The tribunal dismissed the claim.
On the claimant’s appeal—
Held, dismissing the appeal, that, if the employment tribunal had been correct to find that none of the claimant’s disclosures had had any material influence on the respondent’s relevant decisions, then the appeal had to fail, even if there was merit in the claimant’s contention that two more of her disclosures were protected; that, in relation to causation, the employment tribunal’s reasons showed that it had been fully aware of the scope of the defects in what had been done by the decision-makers and had given logical reasons for not drawing an inference in favour of the claimant’s case; that, had the employment tribunal found either of the other disclosures to be protected, it would have gone on to find that they also did not have a material influence on the decision-making, because that conclusion flowed inexorably from the comprehensive findings of fact contained in the tribunal’s reasons; that, on the question of importing the motivation of someone influencing the decision-maker, the decision of the Employment Appeal Tribunal should only be departed from if it was per incuriam, manifestly wrong or there were other exceptional circumstances for so doing; that, as it had not been reached per incuriam and there were no exceptional circumstances, the only question was whether the decision of the Supreme Court relied on by the claimant showed it to have been manifestly wrong; that that decision, however, had turned on the meaning and purpose of section 103A of the Employment Rights Act 1996 and did not purport to change, and did not logically change, the interpretation of section 47B; and that, accordingly, the appeal tribunal decision applied by the tribunal was still valid and binding, and the appeal would be dismissed (post, paras 59, 75, 80–83, 85, 86, 88).
The following cases are referred to in the judgment:
Ahmed v City of Bradford Metropolitan District Council UKEAT/145/14 (unreported) 27 October 2014,
British Gas Trading Ltd v Lock[
Cavendish Munro Professional Risks Management Ltd v Geduld[
DPP Law Ltd v Greenberg
Fecitt v NHS Manchester
Ibrahim v HCA International Ltd
Kilraine v Wandsworth London Borough Council
Ladd v Marshall[
Malik v Cenkos Securities plc EAT/100/17 (unreported) 17 January 2018,
Practice Direction (Employment Appeal Tribunal: Procedure)[
Reynolds v CLFIS (UK) Ltd
Royal Mail Group Ltd v Jhuti
The following additional cases were cited in argument:
Darnton v University of Surrey[
Korashi v Abertawe Bro Morgannwg University Local Health Board[
Oxford Saïd Business School v Heslop UKEAT/110/21 (unreported) 11 November 2021,
The following additional cases, although not cited, were referred to in the skeleton arguments:
Easwaran v St George’s University of London UKEAT/167/10 (unreported) 24 June 2010,
International Petroleum Ltd v Osipov UKEAT/58/17 (unreported) 19 July 2017,
Phoenix House Ltd v Stockman[
Soh v Imperial College of Science, Technology and Medicine UKEAT/350/14 (unreported) 3 September 2015,
APPEAL from an employment tribunal sitting at Croydon
By a decision dated 6 July 2022, the tribunal (Employment Judge Nash, Ms C Edwards and Mr S Corkerton) dismissed a complaint by the claimant, Dr Therese-Mary William, against the respondent, Lewisham and Greenwich NHS Trust, that she had been subjected to detriments as a result of making protected disclosures.
By a notice of appeal dated 3 October 2022 and amended grounds of appeal dated 17 July 2023, the claimant appealed on the grounds that the tribunal erred (1) in holding that she did not have a reasonable belief that her disclosure tended to show that the health or safety of any individual was likely to be endangered; (2) in assessing the claimant’s credibility and the accuracy of the disclosures; (3) in holding that it was bound by Malik v Cenkos Securities plc (unreported) 17 January 2018; and (4) in determining whether decisions to exclude the claimant and then to subject her to an investigation and a sanction were done on the ground of the claimant’s protected disclosure.
The facts are stated in the judgment, post, paras 4–20.
David Welch (instructed directly) for the claimant.
Robert Moretto (instructed by
The appeal tribunal took time for consideration.
24 April 2024. BOURNE J handed down the following judgment.
Introduction1 On 6 July 2022, following a five-day hearing in June 2022, the employment tribunal (“ET”) sitting at Croydon dismissed the claimant’s complaint under section 47B of the Employment Rights Act 1996 that she was subjected to detriments by the respondent on the ground that she had made one or more protected disclosures.
2 With permission granted by Judge Auerbach on 5 July 2023, the claimant advances four grounds of appeal which appear in the amended notice of appeal as follows:
(1) The ET erred by holding that the claimant 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 [necrotising enterocolitis] rates, wrongly assessed the claimant’s credibility and the accuracy of the disclosures and hence held that the information the claimant 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 (unreported) 17 January 2018, 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 claimant and then to subject the claimant to maintaining high professional standards (“MHPS”) investigations and a sanction, were done on the ground of the claimant’s evidential-based protected disclosure, concerning Dr Ezzati compromising patients’ care by failing to handover patients on 13 July 2019.
3 There is also an application by the claimant to rely on a document which was not adduced in evidence before the ET because it did not exist at that time. It is the report of an external report entitled “External Review of Lewisham and Greenwich NHS Trust Neonatal Services by the London Neonatal Operational Delivery Network (ODN), April 2023”.
Factual background4 The claimant, a medical doctor, worked from 2018 onwards as a consultant paediatrician and neonatologist at the University Hospital Lewisham which is operated by the respondent NHS Trust. The ET found that there were serious issues with the neonatology department at the hospital including some dysfunctional working relationships between consultants. There was evidence of a particularly poor relationship between the claimant and a Dr Ezzati, in which...
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...have the same 10 knowledge of what the claimant is concerned about for the employer to be liable (Nicol v World 2024 EAT 42 and William v Lewisham 2024 EAT 58). It is possible for a respondent to be liable where a culture of prejudice and ill will is perpetuated against a claimant which led......
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