Whistleblowing after employment has ended

The EAT has recently considered the reach of whistleblowing protections once employment has ended in the case of Day v Lewisham & Greenwich NHS Trust. It confirmed that whistleblowing protection can apply to post-employment detriments where they are closely connected to the employment relationship.

Facts

Dr Christopher Day, a junior doctor, made protected disclosures in 2014 concerning patient safety at Queen Elizabeth Hospital. His original whistleblowing claims were settled in 2018 following a high-profile tribunal hearing. However, in 2022, the Trust issued public statements in response to media scrutiny and concerns raised by the Care Quality Commission (CQC). Dr Day alleged these statements, and related correspondence to MPs and officials, amounted to detrimental treatment linked to his earlier disclosures.

He brought a claim for detriment due to whistleblowing. The Employment Tribunal accepted that one statement constituted a detriment but found that it was not materially influenced by the protected disclosures. It also held that the claim fell outside the scope of the Employment Rights Act, as the alleged detriment occurred after employment had ended and was not sufficiently employment related.

Employment appeal tribunal decision

On appeal, the EAT found that the tribunal had erred in law. It confirmed that whistleblowing protection can apply to post-employment detriments where they are closely connected to the employment relationship. The Trust’s statements, made in the context of prior litigation and disclosures during employment, met this threshold. The EAT also held that the tribunal had failed to properly consider whether the Trust’s refusal to amend or withdraw its statements, particularly after the CQC raised concerns, could itself amount to a further detriment.

Despite these findings, the EAT dismissed Day’s appeal. It upheld the tribunal’s conclusion that the Trust’s actions were driven by reputational concerns rather than retaliatory motive. The protected disclosures did not materially influence the Trust's actions and so the claim had to fail.

Conclusion

This judgment is a reminder that whistleblower protections do not end with the employment contract. Employers must exercise caution when making public statements about former employees, especially where whistleblowing is involved.