UK: recent whistleblowing cases illustrate limits to lawful employer action in response to allegations

A recent Court of Appeal ruling highlights the importance of accuracy if an employer is going to publicly rebut a whistleblower's allegations.  Although an employer is entitled to respond robustly, if the statements it makes are inaccurate or unjustified and damage the whistleblower's reputation, this could amount to a detriment.

It is unlawful to submit a worker to 'detriment' on the ground that they have made a protected disclosure.  In Jesudason v Alder Hey Children's NHS Trust, a whistleblower had published partly misleading information to the press and to MPs (having already made protected disclosures to the employer and regulators).  The employer had sought to defend its reputation by writing to MPs and others stating that the whistleblower's allegations had been independently found to be completely without foundation.  In fact some of the allegations had been upheld.  Overturning the lower tribunals, the Court of Appeal held that this did amount to a 'detriment', notwithstanding that the employer's purpose was 'to put the record straight'.  However, the purpose was relevant to causation - on the facts, the detriment was not because of the protected whistleblowing disclosures and therefore was not unlawful.

The case highlights the need for caution (and legal advice) when drafting communications responding to whistleblowing allegations (or indeed about other types of employee claim given the possibility of defamation claims).

Meanwhile, the High Court decision in Pertemps v Ladak is encouraging for employers in suggesting that it may be possible - in extreme circumstances - to restrain an ex-employee from persisting in making purported protected disclosures.  In that case the former employee had sent a series of communications to various recipients alleging fraud against the NHS and wide-ranging wrongdoing.  The Court accepted that there was an arguable case that his conduct amounted to unlawful harassment under the Protection from Harassment Act 1997 as well as breaching a settlement agreement.  In these circumstances the Court was willing to continue an interim injunction preventing the ex-employee from making a further purported protected disclosure (save to the NHS Counter-Fraud Authority) without first notifying the employer's solicitors and, if the employer objected, obtaining the court's permission.