In a whistleblowing dismissal claim, the Supreme Court has held that, in limited circumstances, a tribunal can consider the hidden motivations of senior managers who have manufactured a fictitious reason to dismiss when the true reason is whistleblowing (Royal Mail Group Ltd -v- Jhuti [2019] UKSC 55). The EAT has recently considered whether the Jhuti principle can also apply in whistleblowing detriment claims.
W worked for an NHS Trust as a consultant paediatrician and neonatologist. The working relationships between various consultants in the department were said to be ‘dysfunctional’. W had a particularly difficult working relationship with E; they had each raised concerns about the other’s clinical practice. This led to a confrontation between W and E. Following an investigation, W was given a written warning. A grievance that W raised about E’s conduct around the same time was also partially upheld.
W brought a whistleblowing detriment claim, alleging that she had been subjected to detriments for making protected disclosures. The employment tribunal dismissed that claim and held that:
- W did not have a reasonable belief that the relevant parts of her alleged protected disclosures tended to show that the health or safety of any individual had been, was being or was likely to be endangered; and
- The making of any disclosures by W did not have a material influence on the decisions of the Trust which were detrimental to her.
Dismissing W’s appeal, the EAT upheld the tribunals decision. The tribunal had been entitled to conclude that, although W did have some reasonable concerns, her disclosure was made in anger and contained conscious and significant exaggeration meaning that overall she did not have a reasonable belief that the health or safety of any individual had been, was being or was likely to be endangered. Nor had the tribunal erred when it concluded that W’s disclosures had no material influence on the Trust’s decision making. The Jhuti principle, which would allow the tribunal to consider the hidden motivations of persons other than the decision maker, does not apply to the question of causation in a whistleblowing ‘detriment’ (as opposed to dismissal) claim.
William -v- Lewisham and Greenwich NHS Trust [2024] EAT 58
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