Dr Christopher Day v Lewisham and Greenwich NHS Trust

This appeal grew out of a long-running whistleblowing dispute rather than a single workplace incident. Dr Christopher Day had made patient safety disclosures during his employment, and those disclosures were accepted as protected disclosures. He later brought whistleblowing proceedings, which reached a tribunal hearing in 2018 and then settled after he had given evidence.

The settlement did not end the conflict. After the hearing, the Trust published statements on its website and sent communications to others, including MPs and public officials. Dr Day said those statements and related conduct harmed him and were done because he had blown the whistle. That led to a fresh claim focused not on the original disclosures themselves, but on what the employer said and did afterwards.

The later claim centred on whether the Trust’s public messaging and related actions amounted to unlawful detriments. The statements referred to the earlier case, denied that Dr Day had been forced to settle by threats about costs, and said his legal team had approached settlement because the case was not going well. The Trust also referred to the absence of any financial payment and to the effect of publicity on the organisation.

Dr Day argued that these statements, related correspondence and the refusal to remove or update public material were detrimental and were done on the ground that he had made protected disclosures. The tribunal had to separate out several issues: whether particular acts were detriments at all, whether they were in the employment field for whistleblowing purposes, and whether the real reason for them was the protected disclosures.

The appeal raised four main questions. First, had the tribunal applied the right approach to detriment and causation? Second, should the tribunal have drawn stronger inferences from the Trust’s disclosure failures? Third, was the tribunal right to say the claim fell outside section 47B of the Employment Rights Act 1996 because the alleged detriments happened after the employment relationship ended and were not in the employment field?

Fourth, had the tribunal properly exercised its discretion when refusing Dr Day’s costs application?

For ordinary employers, the most reusable issue is the third one. If post-employment conduct can still fall within whistleblowing protection, then an employer cannot assume that statements made after departure or after settlement are legally insulated just because the working relationship has ended.

The Employment Appeal Tribunal dismissed the appeal overall. It upheld most of the tribunal’s findings, including the conclusions on detriment, causation and the refusal to award costs. But it also identified two errors in the tribunal’s reasoning.

First, the tribunal had failed to decide whether the Trust’s refusal to remove public statements after concerns from the Care Quality Commission was itself a detriment. Second, the tribunal was wrong to conclude that the claim fell outside section 47B because the alleged detriments happened after employment ended and were not in the employment field. Even so, the EAT said those errors did not matter to the final result.

The tribunal’s causation findings remained decisive: the protected disclosures did not materially influence the Trust’s actions.

The practical message is not that employers should stay silent in every public dispute. It is that public responses need a clear business reason, careful wording and a documented approval trail. In this case, the employer survived because the tribunal accepted its explanation for why it acted and found the protected disclosures were not the material influence behind the conduct.

That means your risk often turns on evidence. If you publish a statement about a current or former worker, ask why it is needed, who asked for it, what audience it is for, and whether the same objective can be met with less personal or less argumentative wording. If the person has raised safety, compliance or wrongdoing concerns, the retaliation risk is higher and the communication should be reviewed more carefully.

This case also shows how settlement terms and later messaging can create fresh disputes. The earlier claim settled with an agreed position statement, but later statements about why the settlement happened became part of the next claim. If a business wants to say more publicly than the settlement wording itself, that creates extra risk.

The costs part of the appeal is also useful. The tribunal had serious concerns about the Trust’s disclosure conduct, including late disclosure and deleted emails, but still refused the claimant’s costs application. The EAT upheld that refusal as a discretionary decision. For employers, the lesson is not that poor disclosure conduct is harmless. It is that costs outcomes are discretionary and fact-sensitive, while poor disclosure can still damage credibility, prolong hearings and increase legal spend.

If your business is dealing with a whistleblowing complaint, tribunal claim or sensitive departure, this case is a reminder to manage both substance and process. The substance is how you treat the worker and what you say about them. The process is how you preserve evidence, search for documents and explain your decisions later.

Small businesses often focus on the immediate dispute and overlook the later communications risk. A website post, investor update, customer explanation or letter to a public body can become the next battleground. Build a simple internal rule that no one publishes or circulates dispute-related statements without legal and senior management sign-off.