A Settlement agreement (formerly known as a compromise agreement) is a legally binding agreement between an employee and their employer by which the parties compromise an employee’s contractual and/or statutory claims. Settlement agreements are most commonly entered into on termination of employment, although they can be used where employment is continuing.
Can an employer whose whistleblowing employee wages a media campaign against them respond robustly without incurring liability under whistleblowing legislation?
A worker has the right not to be subject to any detriment by any act, or deliberate failure to act, of their employer on the grounds that they have made a ‘protected disclosure’ (section 47B Employment Rights Act 1996).
In order to constitute a protected disclosure, a disclosure to an employer must be made in the reasonable belief that it is in the public interest and that it is of information showing one or more of a number of matters listed in section 43B Employment Rights Act 1996, including:
- That a person has failed, is failing or is likely to fail to comply with any legal obligation to which they are subject;
- That a criminal offence has been committed, is being committed or is likely to be committed;
- That the health and safety of an individual has been or is likely to be endangered.
Whether a disclosure was made in the reasonable belief that it is in the public interest is a two-stage test. First, you must consider whether the worker making the disclosure genuinely believed it to be in the public interest. If it is determined that the worker genuinely held that belief then you move on to assess whether that belief was reasonable.
Protected disclosures may be made to someone other than an employer, such as regulatory bodies, the media and prescribed persons. The criteria which must be met for a disclosure to be afforded protected status varies depending upon the nature of the recipient.
Responding to Disclosures to Third Parties – Jesudason v Alder Hey Children’s NHS Foundation Trust (2020)
The Claimant was a consultant surgeon working for the Defendant. The Claimant made disclosures to the Defendant while he was its employee in 2009 and 2011. As a result of a separate misuse of information, the Claimant later resigned his post and entered into a settlement agreement.
In response to the allegations made by the Claimant, the Defendant commissioned a review by the Royal College of Surgeons (RCS). The RCS found that the standard of care provided by the Defendant was acceptable but made recommendations for improvement.
Following his resignation, the Claimant made a number of further disclosures to third parties, including the CQC and members of the media. The Defendant responded to some of these disclosures by sending the third party recipients a letter from its Chairman which included statements that “each of Mr Jesudason’s allegations have been thoroughly and independently investigated by different professional bodies on a number of occasions and found to be completely without foundation” and that the Claimant’s actions were “weakening genuine whistleblowing”.
The Claimant brought proceedings in the Employment Tribunal claiming whistleblowing detriment and race discrimination in relation to the Chairman’s letter. The Tribunal found that the disclosures to the media were not protected and that, in respect of those disclosures that were protected, the Claimant had in any event not suffered detriment. The Claimant appealed to the Employment Appeal Tribunal who upheld the Employment Tribunal decision. The Claimant appealed to the Court of Appeal (CA).
Were the Disclosures Protected?
It was accepted that the Claimant’s disclosures to the CQC were protected. In order for the disclosures to the media to also be protected, they had to satisfy not only the criteria in S43B Employments Rights Act 1996 (set out above) but also the test in section 43G Employment Rights Act 1996; in essence:
- The worker must have had a reasonable belief that the disclosure, and any allegations implicit in it, are substantially true;
- The disclosure must not have been made for personal gain;
- There must have been a justifiable reason (falling within subsection (2)) for not raising the matter with the employer or a prescribed body rather than some other body; and
- In all the circumstances of the case it must have been reasonable to make the disclosure.
The CA found that the disclosures to the media were not protected as it was not reasonable for them to have been made. The fact that the Defendant had previously asked the RCS to investigate the allegations, while not precluding further disclosure, was considered highly relevant to the question of reasonableness.
The manner in which the Claimant had made the disclosures to the media also had an impact. The CA found that there were elements of the complaint that it may have been reasonable to disclose but this was not sufficient to ‘save’ the disclosures as a whole:
“A worker cannot expect to have protection for a host of complaints unjustifiably brought to the attention of the media or other influential third parties on the basis that among them there is one issue which it might have been reasonable to disclose. A whistle-blower must take some responsibility for the way in which complaints or concerns are framed, and the requirement of reasonableness in section 43G enables an ET to refuse to give protection to irresponsible disclosures.”
Did the Claimant Suffer a Detriment?
In respect of those disclosures that were protected, the CA had to consider whether the Claimant suffered a detriment as a result of the Defendant’s actions. There will be a detriment if a reasonable employee might consider the relevant treatment to constitute a detriment. The CA disagreed with the Tribunal and the Appeal Tribunal and found that there had been a detriment. The letters sent by the Defendant gave rise to an inference that the Claimant had made “specious, unjustified and unsubstantial complaints with perhaps some suggestion of bad faith…”.
The CA did not accept the Employment Tribunal’s reasoning that there could be no detriment as the Defendant had sent the Chairman’s letter in order to defend its position. The purpose of the letters was not relevant to the question of detriment, although it would be relevant to causation.
Causation: was the Detriment on the Grounds of the Disclosure?
It was found that the offending passages in the Chairman’s letter were not included as a result of protected disclosures made by the Claimant. The Defendant’s purpose in sending the Chairman’s letter was to rectify the damage caused by the Claimant’s at least partially misleading disclosures to the media which the CA had already confirmed were not protected. As a result, there could be no liability under the whistleblowing legislation as although there had been detriment, that detriment was not on the grounds of any protected disclosure.
In order for disclosures to the media to be protected it must be reasonable for them to have been made. When assessing reasonableness regard will be had to an employer’s previous response to the allegations disclosed as well as to the way in which the disclosures have been framed. An employer who responds robustly to a whistleblower’s potentially damaging media campaign will not necessarily be liable under whistleblowing legislation for detriment caused to the whistleblower.