EAT finds that ET erred in failing to find detriment, but would have reached the same conclusion in any event due to lack of causation

In Day v Lewisham and Greenwich NHS Trust [2025] EAT 123, the claimant, a junior doctor, raised concerns about patient safety. He subsequently brought claims for unfair dismissal and whistleblowing, but a settlement was agreed part-way through the proceedings. Following the trial, the respondent released a number of statements about the incident and the settlement to the media and other bodies. The claimant brought a second set proceedings alleging that the statements were detriments resulting from the protected disclosures made prior to his first claim. The employment tribunal (ET) disagreed, finding that (i) only one of the alleged detriments suffered by the claimant had been established; (ii) the claimant had failed to establish ‘causation’; and (iii) the claim fell outside of section 47B of the Employment Rights Act 1996 (ERA 1996), in any event. The ET also dismissed an application for costs made by the claimant as a result of the conduct of the respondent during disclosure. The claimant appealed, arguing the ET had:

• taken into account irrelevant information and failed to take into account relevant information (and relevant factors with regards to the costs decision);

• failed to draw inferences from the respondent’s misconduct and failed to explain why;

• failed to apply the ‘material interest’ test in relation to his protected disclosures;

• incorrectly applied the law as to whether he was ‘in employment’ and therefore whether ERA 1996, s 47B applied.

In dismissing the claimant’s appeal, the employment appeal tribunal (EAT) held:

• the ET had failed to determine whether the respondent’s refusal to remove public statements constituted a detriment. However, the alleged detriment could not have affected the conclusion which the ET would have inevitably reached. It was clear from the witness evidence that the detriment was not a result of a protected disclosure, but rather following legal advice to the respondent to combat the negative effect of media coverage on the respondent’s recruitment;

• the ET had erred in its conclusion that the statements made after employment did not fall under ERA 1996, s 47B, however, the claim could not succeed as there was no causal connection between the detriment complained of and the making of the protected disclosures;

The EAT also dismissed the appeal in relation to the ET’s costs judgment, finding that, when taken together with the claimant’s behaviour, the respondent’s behaviour had not reached the threshold for an adverse costs decision.

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