“After six days of evidence at the Employment Tribunal brought by Dr Day against Lewisham and Greenwich NHS Trust and Health Education England it has been agreed by all parties that: • Dr Day blew the whistle by raising patient safety concerns in good faith. • Dr Day has performed a public service in establishing additional whistleblowing protection for junior doctors. • The Tribunal is likely to find that both the Trust and HEE acted in good faith towards Dr Day following his whistleblowing and that Dr Day has not been treated detrimentally on the grounds of whistleblowing. • Dr Day’s claims are dismissed upon withdrawal.”
"Dr Day blew the whistle by raising patient safety concerns in good faith. Dr Day has performed a public service in establishing additional whistleblowing protection for junior doctors. The Tribunal is likely to find that both the Trust and HEE acted in good faith towards Dr Day following his whistleblowing and that Dr Day has not been treated detrimentally on the grounds of whistleblowing. Dr Day's claims are dismissed upon withdrawal.” The claim brought against the Trust was settled on the basis of Dr Day withdrawing his case, the agreed statement (above), and the parties agreeing not to seek any award for legal costs. No financial payment will be made by the Trust as part of the settlement and the settlement is not subject to confidentiality. At the point that Dr Day withdrew his claim, we decided that we should not pursue Dr Day for costs and we have been clear from the outset that the Trust does not want to discourage other colleagues raising matters of concern. We are pleased that this matter has been resolved for all concerned and that Dr Day accepted that the Tribunal was likely to find that the claims against the Trust would have been dismissed had they not been withdrawn. It is very sad that matters got to this stage. We have always been clear that we did not treat Dr Day unfairly on the grounds of whistleblowing and that we investigated his concerns thoroughly and appropriately. This process has been stressful for those involved, especially for our staff who had been called to provide evidence. This was exacerbated by the lengthy gap between the claims being made and the hearing, due to related legal proceedings to include HEE in the Employment Tribunal. Some of this publicity around this case has incorrectly made a link to the findings of a peer review of the critical care unit at QEH undertaken by the South London Critical Care Network in February 2017. This review found a range of concerns, including the number of consultants employed in critical care. It is important to be clear that these were not the same issues that Dr Day had raised in January 2014, which related to junior doctor cover on the medical wards.[4.1(d)]. We responded to the peer review immediately, appointing additional medical and nursing staff and introducing a range of other safety measures. These improvements were noted by a subsequent peer review of critical care at QEH, undertaken by the South London Critical Care Network in February 2018. However, much of the publicity and social media activity around Dr Day’s case has created a negative impression of the Trust, and this does not reflect how we are fully committed to supporting anyone who raises concerns or our commitment to continually improving the quality and safety of our services. Recent work to support staff has included arranging regular staff drop-in sessions, engagement sessions with junior doctors. Who are also now supported by a guardian for safe working hours (a senior member of staff who champions safe working hours for junior doctors). We have also appointed Freedom to Speak up Guardians, who are independent from the Trust and provide confidential advice and support. We will continue to review the effectiveness of these routes and to listen to, and act on, the views of our staff.” (b). Statement 2 –4 December 2018 “Statement on the Chris Day whistleblowing case4 December 2018 Dr Chris Day withdrew employment tribunal claims (for detriment to his career as a result of whistleblowing) against Lewisham and Greenwich NHS Trust and Health Education England (HEE) in October 2018. As outlined in the statement we issued after the Tribunal, his claims related to staffing on a night shift at Queen Elizabeth Hospital (QEH) in January 2014. It is very sad that legal proceedings were required, as we have always been clear that we did not treat Dr Day unfairly on the grounds of whistleblowing; we investigated his concerns thoroughly and appropriately and he completed his contract with the Trust, as planned. Indeed, Dr Day accepted that the employment tribunal was likely to find that the claims against the Trust would have been dismissed had they not been withdrawn. We are extremely disappointed to see that Dr Day has subsequently claimed on social media and in the press that he was forced to withdraw his case as he claims [issue 4.1(a)(i)] that the Trust threatened him with the prospect of paying our legal costs. All of this is simply untrue: we did not threaten Dr Day with legal costs to pressure him to drop his claim[issue 4.1(a)(ii)] – his legal representatives approached us to settle the claim on Dr Day’s behalf. This is because it was clear to them that Dr Day’s case was not going well. Dr Day had a solicitor and a barrister representing him throughout and was always able to take advice before making any decisions. [issue 4.1(a)(iii)]On the issue of costs, we had decided not to pursue Dr Day for legal fees before he withdrew his case. In any case, it is worth noting that costs at employment tribunals are only awarded in exceptional cases. As the Citizens Advice Bureau advises, a judge is only likely to order someone to pay costs if they think they have lied or misled the tribunal or have not cooperated at every stage. In addition, when the employment tribunal does order someone to pay costs, they take into account their personal circumstances and how much they can afford to pay – so full costs are rarely awarded. When they approached us about agreeing to settle the case, Dr Day’s legal representatives proposed having a confidentiality clause in place as part of the settlement. We rejected this as we want to be clear and open on the facts. Much of the publicity and social media about this case has created a negative impression of the Trust, and has not reflected how we are fully committed to supporting anyone who raises concerns, or our commitment to continually improving the quality and safety of our services. It is also important to note that no financial payment was made by the Trust as part of the settlement. Dr Day has commented on social media about the NHS legal costs relating to this case. The reason we required legal representation was because Dr Day had made serious accusations against the Trust and was claiming for loss of career earnings of£5.5 million .” (c). Statement 3 –10 January 2019 “Dr Christopher Day withdrew employment tribunal claims for detriment to his career as a result of whistleblowing against Lewisham Greenwich NHS Trust (LGT) and Health Education England (HEE) in October 2018. A spokesperson for Lewisham and Greenwich NHS Trust said: “Since issuing a statement on this case last month, we have been asked to comment on allegations that Dr Day dropped his employment tribunal case against the Trust because four specific threats were made against him. We deny these allegations”. “Throughout these employment tribunal proceedings, in which Dr Day sought career loss earnings of£5.5 million , Dr Day was represented by solicitor and a barrister. It is important to note that, while Dr Day was giving evidence, his legal team approached our legal representatives to ask if we could discuss settling the case on the basis of: • Dr Day withdrawing his claims • LGT and Health Education England (HEE) agreeing not to apply for costs • Dr Day, LGT and HEE issuing a joint position statement. "
“Following the settlement, the Respondent published three statements in response to what it perceived as adverse comments in the press which it said had a detrimental impact on the Trust. The Claimant says that some of the content of the statements were detrimental to him. Neither party waived legal advice privilege. It is the Claimant’s case that he was pressured into a ‘drop hands’ settlement by both Respondents in that case (the other Respondent was HEE). The pressure he refers to is alleged costs threat against him if he lost the case.”
“there is no doubt that it was Mr Milsom who first approached Mr Cooper about the possibility of settlement even though at that time he did not have instructions. Mr Milsom asked Mr Cooper to put the offer to him as it would then be easier for him to ‘sell’ it to the Claimant. He clearly did not want the Claimant to know that he had approached Mr Cooper first. There were discussions about costs if the Claimant proceeded with his claim and lost. These are described by the Claimant as ‘threats’ which could have left him in the position of losing his house. Mr Cooper does not accept they were ‘threats’ nor does Mr Milsom. The Tribunal is experienced both in its judicial capacity and as practitioners and takes notice of how litigation is usually conducted and how settlement negotiations are usually conducted. It is inevitable, especially when the Respondent is a public body that it will consider whether to make an application for costs if the Claimant in a particular case is not successful. This is part and parcel of the litigation process. It is also not unusual for costs warnings to be given. Often this happens before the hearing in a letter marked “without prejudice save as to costs” or it happens in without prejudice negotiations. What happens is that one party sets out what might happen if the Claimant lost. Often it is done some time before the hearing starts during the preparation phase of the litigation. In this case there was no such costs warning letter sent before the hearing took place in 2018. In this case, the Respondent set out that if the Claimant continued and cross examined the Respondent’s witnesses, and subsequently lost with findings of untruthfulness, then costs would be an issue, once the question of settlement and costs was raised by Mr Milsom. We do not make a finding that the Respondent said it would pursue costs in any event, on whatever basis the Claimant lost. We are satisfied that the offer put to the Claimant was based on him losing and being found to be untruthful. It is difficult to know what was in the Claimant’s mind when he settled the proceedings in 2018 as he has not waived legal advice privilege. This is his right, and no inferences are drawn by him not waiving it. This leaves the Tribunal to consider the evidence it has before it. First the Tribunal considered why Mr Milsom approached Mr Cooper when he did to open discussions about settlement. What we have is the Claimant’s barrister, who is a very experienced employment law practitioner, initiating settlement during his client’s evidence. He goes further than simply asking whether settlement might be possible, he asks to speak to his client about the prospect of settlement notwithstanding he is still being cross examined. This is highly unusual. Why would he do this? Mr Milsom says he was worried about the publicity emanating from the proceedings and the damage it might do to the Claimant’s reputation. He did not go as far as saying the Claimant’s evidence was not good or that he told untruths. However, he did accept that what the Claimant said about covertly recording impulsively was not accurate. We have Mr Cooper’s evidence about the quality of the Claimant’s evidence. He gives several examples. We note the Claimant’s rebuttal of what Mr Cooper says. Mr Cooper is a very experienced KC. In addition to what is set out above, his statement says: “It is relevant to describe some of my impressions of Dr Day’s evidence because his performance as a witness is an important part of the context against which settlement discussions took place. These are, of course, my own impressions, but I believe (and believed at the time) that they are features which came across so strongly that any objective person hearing Dr Day’s evidence would have formed a similar impression. They are therefore relevant to understanding the settlement discussions because the dreadful impression that Dr Day created as a witness was the implicit starting point for the conversations that I had with Mr Milsom about settlement and costs – certainly, it was my starting point and therefore helps to explain both my approach and the inferences which I drew as to Mr Milsom’s position.”
“If something put in one of the published statements is true, then it is not a detriment.”
“The Tribunal has made findings which are set out above about the process leading to settlement in 2018. It has found that the Respondent did not make costs threats as such, although it acknowledges that the Respondent’s position on costs was put to the Claimant. Therefore, issue 4.1.(a)(i), 4.1.(a)(ii) are true and are not detriments. They set out the Respondents position.”
“It was submitted that whilst the statements would not have been made but for the fact that the Claimant was previously employed by the Respondent, the three statements complained of were not made in the capacity of a former employee but as an opponent in litigation, about litigation. It was said that the Claimant’s employment was only for a year and had ended some four years before these statements were made and his relationship with the Respondent had changed from employment to a litigant and his role as a Crowdfunder”
“Dr Day relies on PDs made whilst he was an employee. His case heard in October 2018 was about detriments suffered whilst he was an employee. His present case relies on those same PDs and in part upon the allegedly false characterisation of those PD’s and detriments by R. In addition, C is a doctor. As a professional his reputation is important to him (as tacitly is acknowledged by R, given their reference to GMC referral e.g. in the late disclosed note of the board meeting [Late Disclosure bundle 50-53]. To attack his reputation and his credibility is to attack him ‘in the employment field’. When it was put to C that he made critical comments about R in his capacity as a ‘crowdfunder’, C responded clearly and emphatically: “No I do so in my capacity as a doctor”
“all the underlined parts of the statements were not detriments as they were true save for the one point about the Respondent deciding not to pursue the Claimant for costs before he withdrew. The Tribunal has found this to be a detriment but that it was not written because the Claimant had made protected disclosures. It therefore follows that this part of the Claimant’s claim fails.”
“Attempts must be made by all concerned to keep the discrimination proceedings within reasonable bounds by concentrating on the most serious and the more recent allegations.”
“20.The Respondent has also submitted that the Claimant’s claim had no reasonable prospect of success. The Tribunal has not considered this in any detail given its comments regarding the Claimant and the way he conducted the proceedings. This is sufficient for the Tribunal to conclude that whilst the threshold test for the Claimant’s application for costs against the Respondent is met, that it would not be just and equitable to award costs. In coming to this conclusion, the Tribunal has looked at the whole picture of what happened in the case and finds that there has been unreasonable conduct by the Claimant in conducting the case. The unreasonable conduct relied on is set out above together with its effects”. 21. The Respondent referred to comments the Claimant made on social media about the Judgment and the Claimant responded to what the Respondent said. Having considered these comments (after the Tribunal had considered the matters set out above), the Tribunal finds that they reinforce its view that the Claimant engaged less with the agreed issues and rather more with trying to re-litigate his 2014 case which is why his evidence was so extensive which in turn led to an increase in Tribunal time and costs for the Respondent. 22. In all the circumstances the Claimant’s application for costs against the Respondent is dismissed”
“A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure”
“In this Act “worker” . . . means an individual who has entered into or works under (or, where the employment has ceased, worked under)— (a) a contract of employment . . . ”
“'In my judgment, the better view is that s.47B will be infringed if the protected disclosure materially influences (in the sense of being more than a trivial influence) the employer's treatment of the whistleblower.”
“Liability is not, therefore, established by the claimant showing that but for the protected disclosure, the employer would not have committed the relevant act which gives rise to a detriment. If the employer can show that the reason he took the action which caused the detriment had nothing to do with the making of the protected disclosures, or that this was only a trivial factor in his reasoning, he will not be liable under s 47B.”
“If something put in one of the published statements is true, then it is not a detriment”
“There is nothing perverse in the finding that Mr Milso[m] initiated the conversation and that would have involved asking about the Respondent’s position”
“Mr Milsom considered that there was a significant possibility that the Tribunal would find that the Claimant’s evidence was unreliable and that this could well lead to reputational damage if the case went on to judgment”
“he had advice from Mr Milsom which made him believe or consider that there was a significant chance that he would not be successful, with a finding of untruthfulness”
“Both Mr Travis in his written and oral evidence, and Mr Cocke in his statement explained the effect that the negative publicity surrounding this case was having on the Respondent’s ability to recruit junior doctors onto its training programme and morale more generally. Mr Travis gave evidence on oath about this. The Tribunal has no reason to doubt this evidence”
“if there is no evidence on a particular point, the Court could rely on the inferences drawn from the destruction of documents or the failure to call relevant witnesses to provide evidence which is otherwise absent.”
“The Tribunal therefore does not find that the statements were made because the Claimant made protected disclosures but were made in response to the media interest in this case, and a desire to put the Trust’s side of the story. The Tribunal agrees with the Respondent’s submission that this was essentially a PR battle”. (emphasis added)”
“The protected disclosures had no material influence on the way the statements were drafted”
“They show that the four doctors were consulted about the statements and made comments and asked questions. There was a difference of opinion about how fulsome the information should be and whether or not to refer to an earlier disclosure the Claimant had made. The decision to narrow the statement to just the night shift one in January, was in context of knowing there was an earlier one. Mr Cocke’s statement says he drafted it just to include this one as this was the one that the legal case was about”
“A worker has the right not to be subject to any detriment by any act, or any deliberate failure to act, by his employer done on the grounds that the worker has made a protected disclosure”