Whistleblowing Case Law Day v Lewisham & Greenwich NHS: Protection Continues After Employment Ends

Under the Employment Rights Act 1996 (ERA), workers are protected from being subjected to any detriment on the grounds they have made a protected disclosure (blown the whistle).

The recent appeal case of Day v Lewisham & Greenwich NHS Trust serves as a useful reminder to employers that detriments suffered post-employment can still qualify for protection.

Employment Tribunal dismisses post-employment whistleblowing claims

Dr Christopher Day, a junior doctor, made protected disclosures in 2014 about patient safety concerns at Queen Elizabeth Hospital. Those disclosures were accepted as qualifying for “whistleblowing” protection under the ERA.

After protracted litigation—including a widely publicised 2018 tribunal hearing—Dr Day’s original whistleblowing claims were settled. However, he later alleged that public statements made by the NHS Trust following settlement, and letters sent to MPs and officials, amounted to post-employment detriment linked to his earlier disclosures.

The Employment Tribunal dismissed his claims, finding that Dr Day’s claim fell outside of the scope of the ERA because the alleged detriments occurred after his employment had ended and were not in the employment field.

Employment Appeal Tribunal finds that post-employment whistleblowing detriment claims can be brought

The EAT found that the tribunal was wrong to conclude the claim fell outside the ERA. It held that post-employment whistleblowing detriment claims can be brought where the detriment is closely related to employment, as in this case, where the NHS Trust’s statements were made in the context of earlier tribunal proceedings about disclosures made during Dr Day’s employment.

However, Dr Day’s appeal was dismissed. The EAT upheld the tribunal’s finding that the NHS Trust’s actions were not materially influenced by Dr Day’s disclosures, and that the statements were motivated by media scrutiny and a desire to present the NHS Trust’s perspective.

Key points for employers

• Post-employment exposure: Employers remain exposed to whistleblowing detriment claims even after an employee has left. Statements to the media, regulators, or third parties must be handled with the same care as communications during employment.

• Neutral communication: Even a factually correct statement may be perceived as damaging. Employers should assess whether communications could reasonably be seen as adverse or reputationally harmful to the former employee.

• Reputation management and liability: The NHS Trust’s actions were characterised as part of a “PR battle.” While reputation management is legitimate, employers must ensure public communications do not stray into commentary on the merits of litigation or character of whistleblowers. Neutral, factual updates are safest.

This case is a reminder of the complexity and sensitivity of whistleblowing disputes. Employers should be mindful that whistleblower protections do not end with the contract of employment. Handled poorly, communications can reignite disputes and damage organisational reputation.

To manage post-employment whistleblowing risk, employers should:

• Maintain clear, accurate, and neutral external communications.
• Recognise that the handling of whistleblowing disputes can affect both legal exposure and public trust.
• Ensure compliance with any settlement agreements entered into to avoid further litigation.

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