Whistleblowing-related detriment - when a comms strategy might cross the line from damage limitation to damage creation

The recent judgment of the England and Wales Court of Appeal in the Jesudason v Alder Hey Children’s NHS Foundation Trust case has caused some ripples as employers digest the consequences for their comms strategies. Whilst ultimately still a “win” for the employer in question, the judgment should give pause for thought when it comes to the steps that employers take to defend their reputation. In particular, the Court of Appeal held that the manner in which an employer denies allegations made by an employee could constitute a whistle-blowing related detriment. 

The claimant in the case, Mr Jesudason, had made a number of allegations over the course of several years about serious failures and wrongdoing within the department in which he worked. The allegations were made to a range of parties, including the Care Quality Commission, British Medical Association, MPs and the press. The allegations were strenuously denied by the NHS trust which employed him, including by way of public statements that the allegations had been investigated and found to be without foundation, and that Mr Jesudason’s actions were “weakening genuine whistleblowing”. There was a finding of fact that certain elements of the rebuttal were misleading, and Mr Jesudason argued that the rebuttals were damaging to his standing and reputation. 

Some, but not all, of the allegations made by Mr Jesudason constituted protected disclosures (“whistleblowing” in common parlance) and the actions of the trust in rebutting those allegations were, according to the Court of Appeal, capable of constituting a detriment in response. Whether or not they ultimately constituted an unlawful detriment on the grounds of whistleblowing was a question of causation which the Court answered in favour of the employer. Helpfully, the Court confirmed that motive is clearly relevant at this stage of the analysis and held that the employer’s motivation was damage limitation, rather than a direct attack on Mr Jesudason.  

Although Mr Jesudason lost on causation in this case, the judgment highlights the risks that can attach to making statements rebutting allegations or responding to public criticism. This tricky issue can arise where an employer wishes to respond to an employee’s allegations of misconduct, or where an employer feels that it needs to make a comment (whether within its organisation or externally)regarding employment litigation in which it is involved. Whistleblowing cases tend to generate headlines and employers will often feel that they need to undertake some damage limitation with their own workforce and with the media, by issuing statements in response. The Jesudason case shows the care that must be taken to ensure the accuracy of any statements made. 

This case raises one particular risk area, in the form of detriment claims, but another could be a claim for defamation. Employers may be anxious to address any media reaction to employment litigation in which they are involved -whether that is responding to embarrassing evidence emerging during trial or commenting on the judgment, once issued. They may also wish to issue internal comms to reassure employees or to emphasise the company’s commitment to particular values, especially where those values have been dragged through the mud in a courtroom setting. However, care must be taken around any internal or external communications that are issued. Walking the line between fact and opinion can be a challenge, and expressing a negative view on a judgment can be particularly tricky when an employee’s claim has been upheld.  

The overall lesson from the case is the need to take care around any litigation-related or whistleblowing-related comms but on a more practical note, the case serves as a reminder of the need for comms teams to take legal advice on their strategy, to test the accuracy of the statements being made and to work through the risks and advantages of any statement.  There are occasions when damage limitation could cross the line into damage creation.