Dr Christopher Day v Lewisham and Greenwich NHS Trust: causation standards in whistleblowing detriment claims

The Employment Appeal Tribunal's decision in Dr Christopher Day v Lewisham and Greenwich NHS Trust provides important guidance on establishing causation in whistleblowing detriment claims under section 47B of the Employment Rights Act 1996.

Dr Day raised patient safety concerns during his employment with the NHS Trust between 2013-2014. Following these protected disclosures, he alleged that subsequent statements and actions by the Trust constituted detrimental treatment. His claims for unfair dismissal and whistleblowing detriment proceeded through the employment tribunal system before being settled in October 2018.

Employment Tribunal findings

The Employment Tribunal accepted that certain Trust statements constituted detriment but concluded these did not result directly from Dr Day's protected disclosures. The Tribunal determined that the evidence failed to establish sufficient causal connection between the whistleblowing activities and the Trust's subsequent actions—a crucial distinction in employment law that emphasises the necessity of demonstrable causation beyond mere temporal proximity.

Grounds of appeal

Dr Day's appeal challenged the Employment Tribunal's application of the legal test for detriment and causation. He argued that the Tribunal had failed to draw appropriate inferences from the Trust's conduct and had misunderstood the scope of section 47B protection. The appeal specifically contested the Tribunal's approach to establishing the requisite causal link between protected disclosures and alleged detriment.

Employment Appeal Tribunal decision

The Employment Appeal Tribunal examined the legal principles governing causation under section 47B, confirming that the statutory test requires more than chronological sequence between disclosure and detriment. The protected disclosure must materially influence the employer's decision to impose the detriment. Simple temporal proximity between whistleblowing and adverse treatment does not satisfy this threshold.

Whilst identifying procedural errors in the Employment Tribunal's reasoning, the Appeal Tribunal upheld the core findings. Notably, the Employment Tribunal had not explicitly determined whether the Trust's failure to address certain statements constituted detriment. However, the Appeal Tribunal concluded this omission did not affect the outcome materially, as the Trust's motivation centred on public relations management rather than retaliation against Dr Day's disclosures.

The Appeal Tribunal recognised flaws in the logical connections but determined the fundamental findings regarding causation remained sound. The Trust's actions were driven by reputational concerns rather than punitive intent towards the whistleblower.

Costs considerations

Dr Day's application for litigation costs was unsuccessful. The Employment Tribunal found both parties contributed to prolonged proceedings, negating grounds for costs recovery. The Tribunal deemed aspects of the conduct during proceedings unreasonable, further undermining the costs application.

Legal implications

The decision reinforces established principles whilst clarifying common misconceptions about causation in whistleblowing cases. The judgement demonstrates that employers' defensive responses to public criticism following disclosures may not automatically constitute section 47B detriment if motivated by legitimate reputational concerns rather than retaliatory intent.

The case illustrates the evidential challenges facing whistleblowers in establishing the requisite causal connection. Temporal proximity alone proves insufficient; claimants must demonstrate that protected disclosures materially influenced the employer's decision-making process leading to the alleged detriment.

This decision provides valuable precedent for assessing competing motivations in whistleblowing detriment claims, particularly where employers' actions serve multiple purposes including legitimate business interests alongside potential retaliatory elements.