Katherine Irvine examines a recent Employment Appeal Tribunal (EAT) decision in Day v Lewisham & Greenwich NHS Trust [2025] EAT 123, which confirms that post-employment whistleblowing detriment claims can be brought where the detriment is closely related to the individual’s employment.
Background
Dr Day was employed as a junior doctor between August 2013 and August 2014 and during which time he made various disclosures relating to patient safety concerns. He subsequently brought public interest disclosure (whistleblowing) and unfair dismissal claims against the Lewisham & Greenwich NHS Trust (the NHS trust) in the Employment Tribunal (ET) in 2014. Settlement of those claims was achieved, after Dr Day had given his evidence.
However, the NHS Trust then made statements to the media and other organisations relating to the case and its outcome, around the time of and shortly after the hearing of the 2014 claim.
Dr Day then brought new ET proceedings against the NHS Trust in 2019, on the basis that those public statements amounted to detriments suffered as a result of the protected disclosures (whistleblowing) he had previously made regarding patient safety.
The ET found only one of the statements had been a detriment. However, it did not accept there was a causative link between the detriment suffered and the disclosure made. Instead, it found the NHS Trust was attempting to mitigate negative press. It also decided that the detriment arose after employment ended so Dr Day was not acting ‘in employment’ and as such the detriment fell outside of section 47B of the Employment Rights Act 1996 (ERA).
Dr Day appealed the decision to the EAT on the basis the ET misapplied the legal tests for detriment and causation, had incorrectly concluded that the claim was not ‘in employment’ for the purposes of s47B of ERA, and erred in dismissing his costs application.
Applicable Law
Section 47B(1) of ERA provides that:
“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”.
Decision
The EAT dismissed the Appeal.
It did find however, that the ET was incorrect to hold detriments arising after employment ends would automatically fall outside the scope of s47B of ERA.
The EAT clarified that s47B applies where the detriment is closely connected to the employment, such as statements made in the context of tribunal proceedings about public interest disclosures during employment.
The definition of ‘worker’ under section 230(3) ERA includes a former employee, and ‘employer’ within that section refers to ‘the person by whom the employee or worker is (or, where the employment has ceased, was) employed’. As such, a claimant can be protected from whistleblowing detriment, even after their employment has ended.
The EAT held the ET had erred in failing to consider whether the NHS Trust’s refusal to withdraw or amend the public statements it made, after the Care Quality Commission raised concerns about them, constituted a detriment in itself – although ultimately, the EAT decided this did not affect the overall outcome, because the key matter for the EAT was causation.
In dismissing the Appeal and agreeing with the ET, the EAT found that the NHS Trust’s statements were not influenced to a material extent by the protected disclosures. Instead, they were made in response to media interest in the case and a desire to present the NHS Trust’s side of the story. The EAT also noted that the Trust was concerned about its reputation and the impact of negative publicity on its ability to recruit junior doctors into its training programme and more generally. It did not find a causative link between the NHS Trust’s statements and the protected disclosures made.
The EAT also dismissed Dr Day’s appeal on costs, agreeing with the ET that neither party’s conduct warranted an adverse costs order.
Comment
Katherine Irvine, Associate in our Employment team comments:
“This decision is of importance, as it confirms detriment protections under section 47B can extend to post-employment acts by the employer. However, it also clarifies the causation requirements for whistleblowing detriment claims under section 47B of ERA 1996, namely that claimants must be able to show a causal link between the detriment and the whistleblowing disclosures they made. As such causation can still, as was here, remain a stumbling block in achieving success in a whistleblowing claim at tribunal.
“From an employer’s perspective, it highlights the need to carefully consider all and any communications made relating to the worker, following employment ending. The employer’s reasons behind making such statements can be scrutinised by tribunals when assessing causal links to any whistleblowing detriment alleged.”
Published 19 September 2025
