Dr C Day v Lewisham and Greenwich NHS Trust and Health Education England: 2300819/2019

EMPLOYMENT TRIBUNALS

Case No 2300819/2019

Between

Dr C DayClaimant

Lewisham and Greenwich NHS Trust and Health Education EnglandRespondent

Before

Employment Judge K Andrews

Date 15 November 2022

JUDGMENT

The claim against the second respondent is dismissed.

REASONS

[1]This preliminary hearing was held to determine the limited issue of whether Dr A Frankel was acting as agent for the second respondent at the time of certain of his actions in December 2018 and January 2019 (the other matters for which this hearing was originally listed to determine having been resolved). The first respondent was not present at this hearing.

[2]There is a very significant and keenly litigated history to these proceedings. I emphasised during the hearing and do so again here, that the merits or otherwise of those underlying matters are not relevant to the current issue before me. Evidence & Documents

[3]I heard evidence from the claimant and also for the second respondent I heard from:a. Dr A Frankel, now Consultant Nephrologist at Imperial College Healthcare NHS Trust but Postgraduate Dean for the second respondent from May 2013 to 30 April 2018;

b. Mr L Whitehead, now Director of Corporate Accountability and Engagement but Director of People and Communications at the relevant time; and

c. Professor W Reid, Director of Education and Quality and Medical Director.

[4]I also had an agreed bundle of documents before me.

[5]Both Counsel had submitted written arguments and made very helpful oral submissions on the conclusion of the evidence.

Relevant Law

[6]Section 47B of the Employment Rights Act 1996 states as follows: (1A) A worker (“W”) has the right not to be subjected to any detriment by any act, or any deliberate failure to act, done—(a) by another worker of W's employer in the course of that other worker's employment, or

(b) by an agent of W's employer with the employer's authority, on the ground that W has made a protected disclosure. (1B) Where a worker is subjected to detriment by anything done as mentioned in subsection (1A), that thing is treated as also done by the worker's employer. (1C) For the purposes of subsection (1B), it is immaterial whether the thing is done with the knowledge or approval of the worker's employer. … (3) For the purposes of this section, and of sections 48 and 49 so far as relating to this section, “worker”, “worker's contract”, “employment” and “employer” have the extended meaning given by section 43K.

[7]The Supreme Court has recently restated that the modern approach to statutory interpretation is to have regard to the purpose of a particular provision and to interpret its language, so far as possible, in the way which best gives effect to that purpose (Uber v Aslam

[2021] ICR 657

at para 70).

[8]The principal text on the law of agency, Bowstead and Reynolds on Agency (Sweet and Maxwell, 22nd ed), at paragraph 1-001 states the basic position as follows:(1) Agency is the fiduciary relationship which exists between two persons, one of whom expressly or impliedly manifests assent that the other should act on his behalf so as to affect his legal relations with third parties, and the other of whom similarly manifests assent so to act or so acts pursuant to the manifestation. The one on whose behalf the act or acts are to be done is called the principal. The one who is to act is called the agent. Any person other than the principal and the agent may be referred to as a third party.

(2) In respect of the acts to which the principal so assents, the agent is said to have authority to act; and this authority constitutes a power to affect the principal’s legal relations with third parties.

(3) Where such authority results from a manifestation of assent that the agent should represent or act for the principal expressly or impliedly made by the principal to the agent personally, the authority is called actual authority, express or implied. But the agent may also have authority resulting from such a manifestation made by the principal to a third party; such authority is called apparent authority. Mr Allen confirmed in submissions that the claimant is not relying upon apparent authority.

[9]And at paragraph 2-001 as to how agency arises : (1) The relationship of principal and agent may be constituted: (a) by the conferring of authority by the principal on the agent, which may be express, or implied from the conduct or situation of the parties, and may or may not involve a contract between them; (b) retrospectively, by subsequent ratification by the principal of acts done on the principal’s behalf.

[10]And at paragraphs 2-054, 2-063 & 2-071 as to ratification: 2-054: Every unauthorised act, whether lawful or unlawful, which is capable of being done by means of an agent (except an act which is in its inception void) is capable of ratification by the person in whose name or on whose behalf it was purportedly done. 2-063: It is clear that ratification only applies where the person whose act is in question professed or purported at the time of acting to do so as agent and to have authority to bind the principal. 2-071: In order that a person may be held to have ratified an act done without his authority, it is necessary that, at the time of the ratification, he should have full knowledge of all the material circumstances in which the act was done, unless he intended to ratify the act and take the risk whatever the circumstances may have been.

[11]And at paragraph 2-074 as to what constitutes ratification:(1) Ratification may be express or by conduct.

(2) An express ratification is a manifestation by one on whose behalf an unauthorised act has been done that he treats the act as authorised and becomes a party to the transaction in question. It need not be communicated to the third party.

(3) Ratification will be implied whenever the conduct of the person in whose name or on whose behalf the act or transaction is done or entered into is such as to amount to clear evidence that he adopts or recognises such act or transaction: and may be implied from the mere acquiescence or inactivity of the principal.

(4) The adoption of part of a transaction operates as a ratification of the whole. The claimant accepts that silence is incapable of giving rise to implied authority without more but silence or inactivity may be enough to constitute ratification if the inactivity results in a state of affairs which is inconsistent with treating the transaction as unauthorised (Yona International Ltd v La Reunion Francaise

[1996] 2 Lloyd’s Rep 84

[12]I was referred to various authorities on the law of agency by both Counsel. None of these were decided specifically in the context of the provisions of section 47B but Ministry of Defence v Kemeh

[2014] ICR 625

and Unite the Union v Nailard

[2019] ICR 28

were decided in the context of equalities legislation and therefore analogous.

[13]Of those two authorities, Kemeh is particularly useful as it was a case that addressed whether there was an agency relationship and confirmed that the use of the terminology of agency in legislation must be interpreted in the same way as that terminology would be understood in the common law of agency (para 70 - decided of course before Uber, above). In Nailard the Court considered liability in tort for acts done in the course of such a relationship once established, although it did usefully confirm that the words ‘with the authority of the principal’ in section 109 of the Equality Act 2010 (analogous to the words ‘with the employer’s authority’ at section 47B(1)(A)(b)) does not connote a specific authorisation to do the act complained of.

Findings of Fact

[14]Having assessed all the evidence, both oral and written, and the submissions made by the parties I find on the balance of probabilities the following to be the relevant facts.

[16]The claimant was employed as a Doctor in training by the first respondent until his resignation in 2014. He brought Tribunal claims in 2014 and 2015 against the same respondents to this claim. In the course of those claims it was established that he also had a worker/employer relationship with the second respondent (referred to simply as the respondent for the remainder of this Judgment) which similarly came to an end in 2014.

[17]The 2014 & 2015 claims settled in 2018. The terms of that settlement included an agreed position statement but no confidentiality clause. The claimant subsequently but unsuccessfully applied for the terms of that settlement to be set aside. The 2018 hearing

[19]Dr Frankel was seconded to the respondent as its Postgraduate Dean for South London between May 2013 and April 2018 and was involved in the events underlying the 2014 and 2015 claims. He provided a witness statement and was due to give evidence in the 2018 hearing.

[20]That hearing had been listed for 20 days but the settlement was reached after the claimant’s evidence. Dr Frankel had attended every day of the hearing (except one). The claimant says that at a later meeting (considered below) with Mr Norman Lamb MP (now Sir Norman Lamb), Dr Frankel confirmed he had been the instructing client for the respondent’s legal team at that hearing and agreed the terms of the settlement. Dr Frankel denies that. His evidence was that when the claims were first submitted the respondent’s central and legal team managed the process and that at the hearing he was an unpaid ‘resource’ for the respondent, he listened to the evidence and commented where appropriate. He remembered that there were discussions regarding settlement but that he was not consulted on the wording and there were discussions about that between the respondent’s Counsel, its Chief Executive Mr Milne and Mr Whitehead. He also said that he did not say at the meeting with Mr Lamb that he had given those instructions. He says that the claimant misinterpreted him when he in fact said that he took responsibility for the respondent’s actions in 2014/15. Prof Reid’s evidence was also that the decisions on the litigation were made by Mr Whitehead in discussion with Mr Milne and the legal team. My finding in this respect is set out below where I deal with that meeting. After the settlement

[22]The key factual dispute between the parties is Dr Frankel’s role when he approached Mr Lamb in December 2018 with an offer to brief him. In summary the respective positions are that the respondent says Dr Frankel acted entirely alone and never spoke to anyone at the respondent regarding contacting or meeting Mr Lamb. The claimant’s position is that there was an agreement between Dr Frankel and the respondent to use him as a behind the scenes mouthpiece, circumventing the position statement agreed in the 2018 settlement. The claimant relies upon extracts from various contemporaneous emails and other alleged statements to support that position. It is necessary, therefore, to consider in detail various statements made between relevant parties both orally and in emails.

[23]As Dr Frankel left the Tribunal following the 2018 settlement, he had a conversation with Ms Fletcher, the respondent’s Head of Postgraduate Work Medical and Dental Education Delivery. He advised her that he planned to conduct interviews as the previous Postgraduate Dean with some organisations who had commented on the case with a view to repairing the respondent’s reputation with trainees. She cautioned him against this as it could be ‘fraught with difficulties and opportunity for misreporting’ and believed she had persuaded him to limit his contact to the British Medical Journal. Ms Fletcher brought this conversation to Mr Whitehead’s attention in an email dated 15 October 2018.

[24]He replied: ‘As for Andrew I understand why he would want to do that and he is right, he no longer works for us so is free to do as he pleases. Do you know when and how he is planning to do this as I am keen he does not feel unsupported or alone. We have a duty of care, but I also feel we cannot be seen to promote this approach or provide logistical support as I am not sure we agree that we want to undertake interviews at this stage. Happy to discuss with colleagues as appropriate as to how we approach this.’

[25]The claimant says that this exchange shows that there was authorisation given to Dr Frankel to speak on the respondent’s behalf, albeit limited to the BMJ, and he relies in particular on the phrase ‘cannot be seen to’ which he says indicates the behind the scenes type of activity he alleges. Mr Whitehead denied that that was the case. His position was that the respondent was saying they did not want this sort of activity to happen as they had just agreed a statement as to what could be said publicly.

[26]In the event Dr Frankel emailed the respondent’s solicitors on 17 October 2018, copying in Ms Fletcher, and said: ‘Just thought I would check in to say how reassured l have been by the statements from HEE, the reporting of the statements, CDs appropriate response and indeed the general lack of social media furore. Michael you can reassure Lee that given the above I am now happy to put this completely behind me and don’t feel the need to approach anyone for responsive interviews! I do feel that we can say we have closure here.’

[27]December 2018 & January 2019

[28]In late 2018, there was publicity again about the issues arising from the 2014 & 2015 claims. In particular an article in The Sunday Telegraph on 2 December 2018 of which Dr Frankel quickly became aware. The thrust of that article was that the claimant had been forced to withdraw his earlier claims and accept a settlement because of costs threats. The article also referred to Mr Lamb expressing concerns about the claimant having been ‘crushed’ and the implications for patient safety.

[29]Dr Frankel emailed Mr Lamb on the following evening from his Imperial email address. After introducing himself, Dr Frankel said: ‘I know that you are passionate about the health service and the ability of its staff to report deﬁciencies in care as indeed I am and have always been. I appreciate that you have been very involved in the case of Dr Chris Day. For the ﬁve years whilst I worked for Health Education England I could not ever publicly talk about the issues around this case but now that l have retired I am completely at liberty to do so. I would be very happy to tell you what actually happened in this doctors case in order to ensure that you really are aware of the true facts. I remain deeply concerned that Trainees should appreciate that their educational leads do and always have supported them in relation to potential issues within the trust. The damage that has occurred because of this loss of trust has had implications on patient safety. I hope that you really will be open to hearing both sides of the story.’

[30]The claimant’s interpretation of this email, which he had not seen prior to disclosure in this matter, is that it was written on behalf of the respondent and its educational leads making a representation about their future conduct. Whilst he acknowledges that Dr Frankel expressly said that he had retired and was therefore completely at liberty to talk about the case, he believes that this position was contradicted in other emails.

[31]Dr Frankel’s position is that despite referring to ‘both sides of the story’ and conceding that those two sides must have been those of the claimant and the respondent, when he wrote this email he had not spoken to anyone at the respondent about it and he was writing entirely in his personal capacity albeit based upon his experiences whilst seconded to the respondent. His concern was Mr Lamb’s belief about how medical educators had responded to allegations of issues of patient safety. His evidence was that he sent his email on behalf of all NHS educators and based upon his own personal knowledge of what had happened concerning the claimant. He said that his intention when he sent this email was to show Mr Lamb a report from 2016 to reassure him that the respondent had acted to understand and address the issues raised by the claimant. He said his overall concern was to try to improve trust between trainees and their educators.

[32]Unsurprisingly the Sunday Telegraph article also provoked reaction from both the respondents. The first respondent issued a statement to its key stakeholders challenging its content.

[33]There were informal conversations within the respondent and also various email exchanges both internally and with their lawyers as to what their response should be. In one email exchange it was agreed that they would continue to abide by the agreed position statement although the Chief Executive’s short contribution made it clear that that was not a unanimous view.

[34]In a second email exchange internally at the respondent, also on 3 December 2018, there was a separate discussion about the best response to the article and again the consensus was to refrain from public comment but to continue to deny inappropriate cost pressure on the claimant. In that exchange Prof Reid commented: ‘This is becoming damaging- I was asked about the case last week at two separate events. I will speak to Charlie as we need to (sic) GMC to defend us the same way we did for them with Dr [redacted] and l will make sure other Presidents understand but I understand the case ls being raised in trainee meetings at colleges so we need to watch this.’

[35]Later in the same exchange, on the same day, Mr/Ms A Wallace, Head of Private Office for the respondent, said: ‘Calling for a public inquiry is just Norman being Norman….’

[36]The claimant relies upon this exchange to show that Prof Reid’s view was that some behind the scenes activity was needed as had been done in another case with the GMC and also points to the reference to Mr Lamb.

[37]Prof Reid’s evidence was that despite her comment re the GMC the agreed overall position was to stand by the statement and therefore she did not speak to them but she did speak to some college Presidents to reassure them that the respondent would support trainees. She also said that there had been no discussion regarding trying to get someone to intervene with Mr Lamb on behalf of the respondent. Further her compelling evidence was that when she found out that Dr Frankel had in fact met Mr Lamb she had been ‘absolutely astounded and flabbergasted’ and that she thought it was ‘an extraordinary thing to do’. She also very credibly described how if any meeting was to be held with Mr Lamb – or any Member of Parliament- it would be at a senior level, well organised and prepared for and without the claimant present.

[38]On the afternoon of 5 December 2018 Prof Reid forwarded the first email exchange of 3 December 2018 to both Dr Frankel and Prof McLeod (the Head of English Deans for the respondent who had also been a proposed witness at the 2018 hearing) simply saying ‘so you are both up to speed’. Her explanation in evidence as to why she forwarded this (which Mr Whitehead said he was unaware of at the time) was that as Dr Frankel was a former senior colleague deeply involved in and affected by the litigation he was likely to become aware of these developments and become involved again should further litigation arise.

[39]Dr Frankel replied expressing his disappointment at this development and frustration that: ‘… we constantly allow this man to say what ever he wishes without challenge.’ and ‘…I am concerned that we are certain that we have reassured the large number of trainees out there that patient safety and trainee support or (sic) central to HEEs ethos and always have been.’

[40]The claimant relies upon Dr Frankel’s use of the first person plural (we) in this email to support his allegation that Dr Frankel was still very closely aligned with the respondent and a further indicator of an agency relationship.

[41]Prof Reid replied to Dr Frankel on the same day informing him that they were preparing a fact sheet for the Deans which would include what they could say openly as she wanted them to be able to give reassurance to others that they could raise concerns. Dr Frankel’s reply was an offer of input into the fact sheet given his ‘unfortunate encyclopaedic knowledge on this case’. Prof Reid’s reply to that was to thank him and say ‘…if I have to meet with Norman Lamb I will be in touch for a tutorial!’ To which Dr Frankel replied, ‘Please do’.

[42]The claimant relies heavily on this exchange of emails to support his argument that the briefing document subsequently produced by Dr Frankel (referred to below) was the fact sheet referred to here and that Prof Reid saying ‘thank you’ when he offered his input is evidence of her accepting that offer. The claimant also says that Prof Reid’s reference to Mr Lamb coming apparently from nowhere shows that Mr Lamb had already been a topic of conversation between them. Otherwise, he says, this was a suspiciously coincidental reference given that Dr Frankel had in fact emailed Mr Lamb only a couple of days before.

[43]Prof Reid’s evidence was that her emails to Dr Frankel were simply polite correspondence between professional colleagues, that she did not commission any document and that her reference to Mr Lamb was prompted by the Telegraph article (she had of course also by then seen Mr/Ms Wallace’s email on 3 December where he/she referred to Mr Lamb calling for a public enquiry). Prof Reid also confirmed that no fact sheet for the Deans was ever produced as it was overtaken by events. Dr Frankel also said that his subsequent document was separate to his offer to input to any fact sheet and that no one at the respondent had ever asked him to meet Mr Lamb or intimated that he should. He acknowledged that he was ‘perhaps being deceitful by not disclosing’ his email to Mr Lamb to Prof Reid.

[44]On 12 December 2018 Mr Whitehead informed Prof Reid and others that the claimant had sought leave from the Tribunal to have the settlement agreement set aside. She forwarded that email to Dr Frankel and Prof McLeod with the comment: ‘So you are in the loop - happy to talk at any time’

[45]Dr Frankel replied saying, inter alia, that he was planning to and would produce a short document describing ‘our’ involvement which may be helpful if the case continued to cause problems for the respondent. He also said ‘You may want to speak after seeing this.’

[46]The claimant’s view of this exchange is that, in his words, it jumps off the page that Prof Reid says she is happy to talk and that Dr Frankel also refers to perhaps speaking. It is therefore clear, he says, they were talking to each other. He also says that Dr Frankel’s offer of a draft document was in response to Prof Reid’s mention of the fact sheet.

[47]The respondent disputes this. Both Dr Frankel’s and Prof Reid’s evidence, which I accept, was that they did not speak to each other after a dinner they both attended to mark his departure from the respondent in the summer of 2018. Further Dr Frankel’s evidence was that the short document he referred to planning to produce was different to Prof Reid’s fact sheet. He said that he had been thinking about producing a document since October 2018 as a way of capturing in one sequential account what had happened regarding the claimant from the perspective of the respondent. He believed this would be useful for the respondent given that he, who had the most knowledge about what had happened during the underlying events, had now left. He said that he was not commissioned to write this document, he decided to do it of his own volition and that the terms of his email (‘planning to and will’) is consistent with that. Prof Reid also said that she had not asked Dr Frankel to produce any document.

[48]Arrangements were made on the 14 December 2018 between Dr Frankel and Mr Lamb’s parliamentary assistant, Ms Savin, for him to meet Mr Lamb on 8 January 2019.

[49]On 20 December 2018 Dr Frankel emailed Dr Lacy, former Head of the School of Emergency Medicine for the respondent, also involved in the events underlying the original claims. Dr Frankel told her that he was ‘preparing a briefing for [Prof Reid] in relation to case from our perspective’ and asked for some information regarding the claimant’s training. Dr Frankel accepted in his evidence that he had no authorisation to seek that information and that he was falsely holding himself out as authorised. As for the use of the phrase ‘from our perspective’, Dr Frankel said that this was again a reference to the period June to December 2014, when he had been associated with the respondent and what his department had done then. Prof Reid’s evidence was also that she had not authorised him to approach Dr Lacy. She referred to Dr Frankel’s approach to Dr Lacy as, again, ‘extraordinary’.

[50]Later on the same day Ms Savin conveyed to Dr Frankel that Mr Lamb wanted to invite the claimant to their meeting. In response to that Dr Frankel by email also dated 20 December 2018 said: ‘My preference would be for me to meet Norman as planned and if a meeting could be facilitated thereafter which helps to resolve this very difficult conflict then that is something that would be very helpful. However such a joint meeting would need to involve someone who currently represents HEE as I have now retired.’

[51]Mr Lamb’s office did not specifically respond to that point and Dr Frankel did not pursue it further. In particular he did not at that stage inform the respondent as to what was happening. He admitted in his evidence that perhaps he should have done. He denied that this was because they already knew that he was attending and that they could not be seen to condone it.

[52]On 26 December 2018 Dr Frankel emailed a briefing document to Profs Reid and McLeod. In the covering message he said that the purpose of the document was to recount factually the events that had occurred in relation to the claimant’s whistleblowing disclosures from the perspective of the respondent. He again referred to himself and the respondent in the first person plural (we/our). It is clear on this occasion that he was talking about his historic position with regard to the respondent. He concluded the email: ‘I hope you will find this briefing document useful simply because it allows you to have the actual true facts of what happened at the time given that so many of the people involved have now left HEE’

[53]There was a further exchange of emails between Dr Frankel and Ms Savin on 3 January 2019. She provided some documents to him which the claimant had supplied as background reading. In reply Dr Frankel stated: ‘It is important for me to be able to reassure Norman that individuals from HEE and HEE itself would never cause detriment to a trainee who has made a whistleblowing disclosure. I would therefore like to suggest that the focus of this meeting would be the events between June 3rd and December 2014.…’

[54]Prof Reid was on leave until the week commencing 7 January 2019. Her evidence was that she did not see Dr Frankel’s report until 7 January 2019 at the earliest and she did not read it then as she understood that she would be meeting him and she planned to read it shortly before the meeting.

[55]On 7 January 2019 Dr Frankel sent to Mr Lamb and the claimant, via Ms Savin, a document that set out his understanding of the events relating to the case between June and December 2014 (this was substantially the same document that he had emailed to Profs Reid and McLeod). His covering email included: ‘What I need to get across is that this document describes what I have genuinely believed to have been the facts relating to how my team (HEE SL) were involved in relation to Chris’ whistleblowing disclosures and why over the last four years l have held to the view that we (HEE SL) did not cause Chris detriment. I know that there is so much more to the case since December 2014 and completely understand that Chris feels that this is just as pertinent but I initially wanted to focus on what I believe are the core matters that relate to how I (representing HEE) managed Chris' disclosures.’

[56]The claimant says this is a key email that contradicts Dr Frankel’s frequent statements that he was acting entirely independently and was not representing or acting on behalf of the respondent. Indeed in this email Dr Frankel expressly refers to his team and him representing the respondent. My reading of this email however is that it is a reference to Dr Frankel historically having represented the respondent and what his team had done then. Further it is clear from the document enclosed with the email, in which Dr Frankel again refers to his role in the first person plural, that he is then referring to his role at a time when he did represent the respondent.

[57]Dr Frankel and the claimant met informally on 8 January 2018 while waiting for the meeting with Mr Lamb to begin. There is a dispute between them as to exactly what was said during that pre-meeting but it is clear that there was a general conversation where it was acknowledged what a difficult experience the case had been for many people including the claimant.

[58]During the meeting with Mr Lamb, of which no notes were taken, there was a general and wide ranging discussion about the situation which is outwith the scope of this hearing. The claimant agreed that at the outset and conclusion of the meeting Dr Frankel emphasised that he was there in a personal capacity, without the respondent’s knowledge, and asked that that be respected. The claimant did not challenge that statement at the time.

[59]Dr Frankel’s evidence was that in the course of the meeting he said that he took full responsibility for the decisions made in 2014. He did not recall being asked who had made the decisions in relation to the 2014 & 2015 claims. The claimant’s evidence was that Dr Frankel was asked that and he confirmed that he had been responsible for those decisions.

[60]It seems unlikely that someone who is no longer seconded to a party to litigation would have responsibility for giving instructions on that litigation and especially where it concerned such an important issue. I recognise that there were other matters on which Dr Frankel did perform some unpaid ‘run off’ work and that he was provided with updates on various matters – including the 2014 & 2015 claims – from time to time. That run off work was of a fundamentally different nature however (e.g. a visit to the GMC, submissions to the Lancet). It seems much more likely that the accurate position is as described by both Mr Frankel and Prof Reid, namely that it was Mr Milne and Mr Whitehead who provided those instructions. That being the case, it must further be unlikely that Dr Frankel said at the meeting with Mr Lamb that he took responsibility for the instructions. It is more likely, as Dr Frankel has suggested, that the claimant misunderstood what he said.

[61]I conclude that Dr Frankel’s recollection (and I did not have the benefit of hearing Sir Norman Lamb’s evidence on this point) is the more reliable. I find that Dr Frankel did not have, and did not say he had, authority as the instructing client at the 2018 hearing.

[62]The following day the claimant emailed Mr Lamb and in response to that Dr Frankel also sent an email in which he said, inter alia: ‘I really do agree with Chris's comments about this being a tragic case and understand that this has had enormous implications for him and while members of the organisation i work for have also suffered as a result of this case I completely empathise with him in relation to his position. …we genuinely did not believe and never have believed that we (HEE) caused Chris detriment.’ followed by several expressions in the present tense of the respondent’s position. It concluded: ‘Please note that I am not copying this email to anyone and have not discussed the contents of this email with HEE or their lawyers and hope that you will respect that.’

[63]On 12 January 2019 Dr Frankel sent a further draft of his report to Prof Reid by email and said he would value a short conversation with her about why he had sent it to her. The fact that he wanted to tell her why he sent it to her does suggest that he did not think she was expecting it. Prof Reid replied saying that her business manager would book a call with him and that was in due course done.

[64]On 10 January 2019 the first respondent issued a further public statement. Ms Diaz, Senior Communications Manager, Media for the respondent circulated that statement to various senior members of the respondent and its legal team, including Prof Reid. Ms Diaz confirmed her view that the respondent should not change its position. Ms Thompson, the respondent’s Service Delivery Manager, Case Management and Appeals, forwarded Ms Diaz’s email to Dr Frankel and Dr Lacy for their information. Dr Frankel took the opportunity to ask Dr Lacy again for the information he had previously requested regarding the claimant’s training. Dr Lacy replied with that information on 14 January 2019. Dr Frankel then inserted that information into his briefing document which he emailed to Dr Lacy and Ms Thompson on 15 January 2019. He told them that he had already sent it to Prof Reid, had now inserted the new data and that any comments were welcome and it might be good to have a chat non-urgently.

[65]Ms Thompson thanked Dr Frankel for his document and asked if this was an internal document acting as an aide memoir for Prof Reid or was it going to be an external document. Dr Frankel’s reply was: ‘I have sent this to Wendy as an aide memoir particularly if she does meet Norman Lamb There is an external version which is significantly shorter’ His evidence was that his reference to an external version was to the fact sheet which had been previously mentioned but he had not seen and was completely separate to his own document. He accepted that his language was lazy and incorrect but his view was that the documents were two completely separate things. His explanation of why he referred to Mr Lamb was that he thought it was highly likely Prof Reid would meet him given his public statements on the matter.

[66]Ms Thompson replied asking if the external document was going to be published and if it was likely that Prof Reid would meet Mr Lamb. Dr Frankel simply replied saying ‘no this contains the key data’ which Dr Frankel accepted in evidence seems to be a non sequitur.

[67]Dr Lacy replied making it clear that she was extremely concerned at some of the contents of Dr Frankel’s document which we she felt were inaccurate and may require her to take independent advice. In the course of that exchange Dr Lacy asked whether the document had ‘HEE ownership’ to which Dr Frankel replied that it was a ‘private’ document that he was sharing with Prof Reid in advance of any meeting she had and he later said that it was a document for his and Prof Reid’s use. His explanation of that comment in his evidence was that he had the relevant institutional memory and that there was no one else in a position to record the information that he had.

[68]I find that Dr Frankel decided of his own volition to write his briefing document in order to capture his knowledge of the underlying events in what he saw as a more helpful format than the documents prepared for the litigation. This was in accordance with his general motivation throughout the period (see below) and at least some of his express statements in his emails. I find that Prof Reid did not commission the briefing document and she was unaware of it until he sent it to her in January 2019. Further, I find that the briefing document and the proposed fact sheet are two separate things.

[69]Because of the concerns raised by Ms Thompson and Dr Lacy, Dr Frankel cancelled his planned meeting with Prof Reid. He explained: ‘The London office [by which he said he meant Ms Thompson and Dr Lacy] are concerned that I as someone who is no longer working for HEE are briefing her with a document that has not been through HEE due process. I understand this concern and this email is not sent in anger. I would suggest that the document I have sent Wendy goes no further as it is a personal document created by me. It was created to try and tell the story in a sequential manner as the evidence bundle and witness statements do not provide this overview… I am certain that Wendy will obtain any formal briefing in relation to this case from HD and from the London office - if she is due to meet Norman Lamb and wants me to talk through the nuances of the case so that she can appropriately, effectively and robustly defend HEE position I am happy to talk through the case. However in the first instance the briefing should come through formal HEE processes.’

[70]By then Prof Reid had read the document in preparation for the planned meeting and she replied to Dr Frankel on 21 January 2019 thanking him for it and stating that she was grateful as keeping track of the case had been a challenge and his expert input had been vital for her understanding. She stated: ‘I am sorry that the London Office felt the need to be quite so formal and I certainly consider you as part of the HEE family!’

[71]Dr Frankel replied on the same day. His concluding comment was: ‘My suggestion is that if you do find yourself in a position where you are meeting in relation to the case and particularly if it involves Chris Day himself it would be very useful for us to have a telephone conversation before that meeting.’ Dr Frankel’s evidence was that at this point he had still not told Prof Reid that he had met with the claimant and Mr Lamb.

[72]In the meantime the claimant had sent a detailed email to Mr Lamb following the meeting with various challenges to the respondent’s position. Ms Savin forwarded that to Dr Frankel on 11 January 2019 and Dr Frankel replied, in some detail, to her on the same day. Again in that email Dr Frankel referred to himself and the respondent in the first person plural several times and also referred to the respondent as ‘the organisation I work for’. I accept his evidence that that was simply an error and he should have said ‘worked’ as plainly he did not at that stage still work for the respondent. The final paragraph of his email read: ‘Please note that I am not copying this email to anyone and have not discussed the contents of this email with HEE or their lawyers and hope that you will respect that.’

[73]This claim

[74]The claim form in this matter was submitted to the Tribunal on 6 March 2019.

[75]Mr Lamb wrote to the respondent’s Chief Executive on 30 April 2019. The thrust of that letter was that he remained concerned about the conduct of the respondent towards the claimant and asked for a substantive response to various concerns he had raised. The Chief Executive replied on 22 May 2019 (the day before their response was filed with the Tribunal) acknowledging his letter, setting out a short background of the matter and stating: ‘In addition, Dr Day has now issued further proceedings in the Employment Tribunal claiming compensation for new alleged detriments, part of which arise from meetings at which you were present. As you will appreciate, it would therefore not be appropriate for me to comment on any issue or claim which is subject to ongoing going legal claims by Dr Day.’

[76]The claimant has commented on the failure by the respondent in that reply to set the record straight regarding Dr Frankel’s attendance at the meeting and make it clear that he was not representing them. I find that it was entirely reasonable and predictable for them not to comment given that legal proceedings were underway.

[77]Authority of Dr Frankel

[78]Having made those findings of fact, the key remaining factual issue is whether the respondent knew about and furthermore expressly authorised Dr Frankel to meet the claimant and Mr Lamb on their behalf.

[79]Dr Frankel says they did not and has described his own actions in contacting Mr Lamb and then conducting the meeting without the respondent’s knowledge, knowing that if he told them they would seek to dissuade him, as ‘naïve’ and ‘stupid’. Prof Reid described it as ‘extraordinary’ and it has obviously led to a loss of trust in him on her part. He says however that his motives were good. Initially he just wanted to aid Mr Lamb’s understanding which in turn would help restore trainees’ faith in the respondent and then, when it became clear the claimant would be present, try to help repair his relationship with the respondent. The claimant says that Dr Frankel did not act stupidly, naïvely or extraordinarily as agreement had been reached between him and the respondent to approach Mr Lamb.

[80]In assessing the evidence and concluding which of these accounts is more likely than not to be accurate, I have to assess the credibility of the witnesses. The claimant of course has not offered any direct evidence of his case but rather relies upon implication. My view is that the claimant genuinely believes that implication and accordingly his evidence is truthful in that it reflects his beliefs. I also find however that the evidence of Dr Frankel and Prof Reid was similarly truthful. They are both distinguished in their respective careers and appeared to give their evidence carefully and candidly. Indeed Dr Frankel readily acknowledged the foolhardiness of some of his actions, undoubtedly well-meaning though they were.

[81]A number of factors lead me to conclude that the respondent had no prior knowledge of the meeting between Dr Frankel, the claimant and Mr Lamb nor did they expressly authorise Dr Frankel to so act on their behalf:a. the respondent has its own legal and media departments and has experience of dealing with communication issues of public importance. It had previously been made clear to Dr Frankel that they did not want him briefing any external bodies directly (although they recognised he had become a free agent and they had a duty of care to support him). It is clear that there were finally balanced internal views on how to deal with the issues arising from the dispute with the claimant and various people were consulted before deciding not to make any public comment but to stick with the agreed position statement. In those circumstances it must be extremely unlikely that the respondent or any individual within it would ask Dr Frankel to unofficially brief a Member of Parliament who had been very vocal on this specific issue. It is far more likely, as Prof Reid described, that any such meeting would be very carefully handled and planned. That is not outweighed by the particular phrases in emails relied upon by the claimant that he believes show the contrary (e.g. ‘cannot be seen to’, reference to being part of the HEE family) nor Prod Reid’s previous requests ‘behind the scenes’ for GMC support;

b. that position is consistent with the express statements made by Dr Frankel both orally and in writing to Mr Lamb and the claimant that he was acting entirely privately. I am not persuaded that Dr Frankel’s insistence that he was acting in a personal capacity is in itself evidence that he was not i.e. a ‘he protests too much’ argument. I do recognise that Dr Frankel’s use of words in his emails and the briefing document is mixed. On some occasions he used the first person singular which was entirely in accordance with him acting privately. On others he used the first person plural - sometimes clearly by reference to times when he had been seconded to the respondent but other times inappropriately using ‘we/our’ etc. I find that this was a combination of, on occasion, poor drafting by Dr Frankel and also a strong personal identification with the issues. It is clear that, understandably, Dr Frankel took very personally the claims that had been made against the respondent ‘on his watch’. Although he had left in 2018 he continued to be involved as a potential witness in the ongoing litigation and could not simply walk away from the very serious issues that had been raised. His continuing interest in those issues was to be expected. I accept that his motivation to do what he did was laudable namely trying to help resolve matters between the parties and also try to repair damage done to the reputation of the respondent with Doctors in training. The way he went about it however was wholly inappropriate and in doing so he slipped into using language that confused his previous and current roles;

c. although Mr Lamb’s name was mentioned in emails within the respondent together with some rather light-hearted references to perhaps having to meet him at the very time Dr Frankel was either contacting him or planning to, this is not particularly surprising given the MP’s vocal and public support of the claimant and recent publication of the Sunday Telegraph article. I do not find that this was an indication of conversations happening that I have not been told about.

[82]Further I find that the respondent remained unaware of Dr Frankel’s activities until they received the claim form in March 2019. There is no evidence to suggest otherwise.

Conclusions

[83]Mr Allen confirmed that the claimant’s primary case is that the respondent sent Dr Frankel to meet Mr Lamb in order to put their case to him (i.e. he was an express agent). His secondary case is that the respondent found out about the meeting after the event and then ratified Dr Frankel’s actions (he acknowledged that they could only ratify something they had become aware of) and in that context he argues that the ‘something more’ required in addition to silence on the part of the respondent to ratify the actions of Dr Frankel can simply be the worker status of the claimant vis-à-vis the respondent. Such an approach, in the context of purposively reading the concept of agency broadly, results - he says - in the respondent positively needing to disavow the actions of Dr Frankel when they become aware of them which he says they did not do.

[84]Having found as a fact that the respondent did not expressly or impliedly commission Dr Frankel’s briefing document nor know that Dr Frankel was contacting Mr Lamb or meeting him, it is clear that my finding must be that Dr Frankel was not acting as an express agent of the respondent. There was no manifestation of assent by the respondent as a principal for him to do so. The claimant’s primary case therefore fails.

[85]Further, as ratification can only apply where the person whose act is in question (Dr Frankel) professed or purported at the time of acting to do so as agent and to have authority to bind the principal (the respondent), it is plain that the claimant cannot successfully argue ratification as in fact the opposite was professed by Dr Frankel. He expressly and repeatedly said that he was acting entirely privately and not on behalf of the respondent.

[86]In any event, my findings on the facts are that the respondent did not find out about Dr Frankel’s actions until the claim was served on them and once it was, they pleaded that he had not been their agent (even though the agency argument was not initially argued). Ratification cannot therefore be made out.

[87]The claim against the second respondent is therefore dismissed. The claims continue against the first respondent as already listed.

Analysis

[88]A journalist who was observing the hearing made an application to see the witness statements and the bundle of documents. Witness statements were made available as witnesses gave evidence by the Claimant’s solicitors. The Claimant’s representative asked the Tribunal to determine whether the bundle should also be made available.

[89]There is a recent decision from the Employment Appeal Tribunal in the case of Guardian News and Media Ltd v Dimitri Rozanov and Others

[2022] EAT 12

. The factual background in that case is different to the current case. In the Guardian case, the journalist had not attended the hearing and it was some time later that the request was made.

[90]If we were sitting in a physical setting, rather than a virtual setting, then the usual practice is that there is a bundle made available that journalists and members of the public can look at, but only while they are in the hearing room, and they can not take them away. The Guardian case held that the only documents which were to be disclosed were those documents which were referred to in the judgment rather than the whole bundle. Page 22 of 67

[91]We were not taken to any presidential guidance on this point and are not aware of any. Our decision is that once judgment has been promulgated, then it is open for the press to request copies of the documents which have been referred to it. This preserves the concept of open justice. The decision was that the bundle would not be provided during the hearing and that a separate application could be made once the judgment had been promulgatged. Mr Cocke’s evidence

[92]Mr Cocke had contacted the Tribunal on Friday 8 July 2022 to say he was fit to attend the Tribunal to give evidence and wanted to do so. It was therefore arranged that his evidence would be heard on Tuesday, 12 July 2022. On that morning, the Tribunal received a letter from Kingsley Napley Solicitors who had been instructed by Mr Cocke, to say that he was in fact too unwell to give evidence and was seeking medical treatment. Mr Tatton Brown on behalf of the Respondent said that it was not seeking an adjournment as this would not be proportionate given that it was not known if Mr Cocke could give evidence in the future or what the likely time scales would be. The Tribunal was asked to accept his evidence.

[93]Mr Allen on behalf of the Claimant pointed out what he saw as various contradictions in the information received regarding Mr Cocke’s health. The contradictions were him first saying he was too unwell to give evidence, then saying he would give evidence and then saying he was too unwell. This meant that the Claimant could not accept what was being said as too many assertions turned out not to be true. The only medical evidence we have is from Mr Cocke’s GP who said he was fit to give evidence. The Claimant reiterated that he did not feel a fair trial was possible.

[94]The Tribunal’s view at that time was that considering the medical evidence from Mr Cocke’s GP there was no medical reason Mr Cocke could not give evidence and if he did not give evidence then this was a decision of the Respondent. Further medical information was then obtained which said that Mr Cocke was too unwell to attend to give evidence. Mr Cocke did not give evidence. On balance the Tribunal is satisfied that Mr Cocke was unfit to give evidence. Whilst the members of this Tribunal are not medically trained, it appeared that the apparent contradictions raised by the Claimant were indicative of a progressing mental health issue and this taken together with the irrational act of deleting emails points to Mr Cocke being quite unwell especially as it was he who first provided extra documents that had not been disclosed. We do not doubt that Mr Cocke is ill, but accept that there is no independent medical information explaining the nature of his illness and how it manifests. He was clearly thinking rationally when asking Dr Harding about any further information after listening to Mr Travis give evidence. He had the wherewithal to contact Dr Harding and speak to him, and Dr Harding then found the email chain leading to the disclosure process during the hearing. A potential scenario is that the deletion was deliberate and an act of concealment. There are potentially a huge number of emails missing from disclosure. How much of this would be relevant to these issues is unknown. Page 23 of 67

The Issues

[95]The Issues were agreed by the parties and are set out in full in appendix 1.

The relevant law

[96]The Employment Rights Act 1996 is the relevant statute.

[97]ERA 1996 Act, s47B(1), a worker has the right not to be subjected to a detriment by any act “done on the ground that [he or she] has made a protected disclosure”.

[98]If there was one or more protected disclosures then the Tribunal will consider the claims of having suffered detriments. Section 47B(1) of the 1996 Act is as follows: 47B Protected disclosures (1) 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.

[99]Once a protected disclosure has been established, the enquiry of the Tribunal will therefore initially be whether there was in fact any detriment, and then whether that detriment was ‘on the ground’ of a protected disclosure having been made. Section 48 provides so far as is relevant: 48 Complaints to employment tribunals(1) – (1ZA) . . . . (1A) A worker may present a complaint to an employment tribunal that he has been subjected to a detriment in contravention of section 47B. (1B) . . .

(2) On such a complaint it is for the employer to show the ground on which any act, or deliberate failure to act, was done.

[100]In Fecitt-v-NHS Manchester

[2012] IRLR 64

, the Court of Appeal held that, for the purposes of a detriment claim, a claimant is entitled to succeed if the Tribunal finds that the PID materially influenced the employer’s action.

[101]The test is the same as that which applies in discrimination law. This, in the context of the PID jurisdiction, separates detriment claims from complaints for unfair dismissal under s103A: there, as we have stated, the question is whether the making of the disclosure is the reason, or at least the principal reason, for dismissal. The Tribunals findings of fact and conclusions Page 24 of 67

[102]The Tribunal has come to the following findings of fact on the balance of probabilities having considered the evidence, documents referred to and submissions. For proportionality, these findings are limited to those matters which are set out in the list of issues and are necessary to explain the decision reached. The background to this claim (the 2014 proceedings)

[103]In 2014 the Claimant presented claims of unfair dismissal and whistleblowing against the Respondent and Health Education England. The hearing was listed for 2018 and settled at the conclusion of the Claimant’s evidence. The settlement was by way of a non-confidential settlement agreement with agreed statement forming part of it. There was no money paid to the Claimant as part of the settlement agreement. This claim arises from statements made by the Respondent following the settlement.

[104]The Tribunal spent some time considering the settlement in the 2014 proceedings, how this settlement came about and the terms of the settlement.

[105]The Respondent was represented by Mr Cooper KC. The Claimant was represented by Mr Milsom. The Claimant asked for a reconsideration of the dismissal judgment on the basis that he entered into the settlement agreement under duress following costs threats from the two Respondents.

[106]Employment Judge Martin (who is the judge in this case) was appointed by the then Regional Judge Hildebrand to consider this application as the Claimant requested that Employment Judge Freer (as he then was) who was the judge in that case should not consider it as it related to without prejudice communications between the parties, which the Claimant did not want Judge Freer to hear if he was to rehear the case. Judge Martin refused this application after due consideration.

[107]The Claimant appealed to the Employment Appeal Tribunal. The appeal was dismissed by Heather Williams, QC (as she then was). The Claimant appealed to the Court of Appeal and HHJ Simler dismissed the application for permission to appeal. The Claimant is highly critical of the appeal processes in the Employment Appeal Tribunal and the Court of Appeal and of the judges who dealt with his appeal. The Tribunal is mindful of comments made by the Claimant on his crowdfunding website which were referred to in this hearing: “My experience of this case over the last 5 years is the healthcare and then legal establishment closing ranks. It seems when the establishment wants to cover something up it will, and in this case was prepared to spend £700k smearing and silencing a junior doctor……it is obvious that setting aside my settlement agreement would expose a number of senior people which now includes, judges, lawyers and politicians. I always had faith in the British legal system but it seems there are a number of people that are either too weak or corrupt to do their duty”. This was posted just after the Court of Appeal had rejected his appeal against the refusal to reconsider the judgment dismissing the 2014 proceedings. Page 25 of 67

[108]This Tribunal has approached this case with an open mind and has discharged its obligations without fear or favour. Given that the Claimant’s appeal was not successful, the Tribunal considered this case on the basis that the 2014 case was lawfully settled by the parties.

[109]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.

[110]The Claimant gave evidence over 6 days in the 2018 hearing. His evidence started on Wednesday 3 October 2018. The Claimant was represented by Mr Milsom, barrister, and the Respondent by Mr Cooper KC. On Friday 5 October 2018 (when the Tribunal was not sitting) Mr Milsom sent an email to Mr Cooper: “You around for a chat this afternoon?”. There was no indication of what Mr Milsom wanted to chat about. There was a telephone conversation later that afternoon. Mr Cooper produced a handwritten note he made both during and immediately after the conversation and he sent an email to his instructing solicitors, Capsticks, setting out what had been said. At this time, neither Counsel had any instructions from their clients about settlement. The Tribunal has no reason to doubt what Mr Cooper put in his note. Mr Cooper’s evidence

[111]Mr Cooper says that he had not known what Mr Milsom wanted to chat about and that Mr Milsom began by saying words to the effect that he wanted to speak, without instructions, on a without prejudice basis and he asked whether Mr Cooper would agree to speak on that basis. The Tribunal finds the purpose of Mr Milsom contacting Mr Cooper was to explore the possibility of settlement. Mr Cooper was content to discuss this on the basis he would share what was said with the Respondent and it was on a without prejudice basis.

[112]Mr Cooper recalled Mr Milsom saying something like ‘We are all going along like a freight train with this 20-day hearing without anyone pausing to think, “Where’s this all going?’ “that he imagined that any monetary settlement would be difficult in light of the need for Treasury approval, and perhaps more so in light of the evidence heard so far”. Mr Milsom then suggested a “soft landing” which he explained meant a drop Page 26 of 67 hands with an agreed joint statement.

[113]Mr Cooper said that he understood that it was implicit in the approach made by Mr Milsom that the Claimant’s claim was unlikely to succeed. His view was that if the Claimant did lose and that if he was found to be untruthful in his evidence then an adverse costs award could result. There was then a discussion to test the water about the possible parameters of any settlement. The indication Mr Cooper gave was that if the Claimant was to withdraw at that stage the Respondent would not make an application for costs but that if he continued and were to lose with findings he had been untruthful, the Respondent would make a costs application. Again, this was without instructions which was made clear.

[114]Mr Cooper had already considered the possibility of seeking instructions to make a drop hands offer because of how he perceived the Claimant’s evidence to have gone, but was decided not to take instructions from his client until after the Claimant had completed his evidence. Mr Milsom’s approach meant that he addressed this issue earlier that he had been intending to do.

[115]Mr Cooper sets out why he was considering making such an approach to the Claimant after his evidence had completed. His witness statement sets out his impression of the Claimant’s evidence. His impression was that the Claimant had an “obsessive belief in his victimhood” resulting in him making a “progressively more elaborate re-writing of history by him to fit his narrative”. He considered that the Claimant’s evidence was “dishonest and underhand in pursuit of what he saw as the virtue of his case”.

[116]Mr Cooper gives examples in his witness statement of how he says the Claimant’s evidence went. The Claimant disagrees with this as set out in his first supplemental statement.

[117]At 13.48 that day Mr Milsom sent Mr Cooper a text message: ‘Hi Ben, Chris here. It would be handy for him to have the weekend as thinking time: would you object to me speaking to my client along the lines we discussed? I would understand if you did but it would be handy to make use of the hiatus’. As the Claimant had not finished his evidence this was an unusual request. However, all parties were concerned that negotiations could take time and would eat into the time allocated for the hearing which was already tight. Mr Cooper and Mr Moon KC for HEE, having consulted their respective clients, allowed Mr Milsom to talk to his client about the settlement, but not, for obvious reasons about the evidence the Claimant had given thus far. Mr Milsom had suggested that Mr Cooper set out a proposal for him to take to the Claimant as it would then be easier to “sell” to the Claimant.

[118]Later that day Mr Cooper sent a text message to Mr Milsom: ‘‘Hi Chris – I can confirm that I now have instructions to offer a drop hands if your client agrees to it before we start our evidence, but if he continues and loses with adverse findings as to his truthfulness then there would be an issue as to costs. We are also content for you to speak to Page 27 of 67 your client about this so he can reflect over the weekend, but on the basis that you don’t discuss any specific aspect of his evidence and that you stick to(i) conveying the drop hands offer; and

(ii) giving your advice, in general terms only, as to the overall risk that he may lose and have adverse credibility findings, and consequently on the merits of drop hands at this stage. Finally I haven’t been in touch with Angus [Mr Moon] today but assume you will also get his consent before discussing anything with your client. Best wishes, Ben.’

[119]Mr Cooper emphasised that whatever Mr Milsom may have communicated to the Claimant, there was never any definite proposal to make an application for costs, but it was “an issue” depending on the Tribunal’s findings.

[120]Having got agreement from Mr Moon, Mr Milsom spoke to the Claimant on Sunday. This is dealt with below in relation to Mr Milsom’s evidence. This was by any view going to be a difficult conversation given the limitations of the advice Mr Milsom could give the Claimant, as the Claimant was still being crossexamined. The result of the conversation was that the Claimant rejected the offer to settle and completed his evidence. Mr Cooper had told Mr Milsom that the offer of settlement remained open until the first witness for the Respondent was called at which time it would lapse. The Claimant’s evidence finished on 11 October 2018.

[121]As far as Mr Cooper was concerned, the only other communication he had regarding costs was a discussion on 11 October 2018 initiated by Mr Milsom who wanted to get confirmation of the Respondents respective positions before advising the Claimant when his evidence had finished. Mr Cooper then received an email from Mr Milsom that evening at 8.07 pm: ‘Dear all, I am instructed to offer as follows:- 1. Withdrawal of all claims 2. Forbearance from any side pursuing costs (both ordinary and wasted) 3. Conﬁdentiality as to terms 4. Mutual non-derog clauses. We would wish this to encompass any disclosure of the circumstances of settlement/withdrawal of the claim 5. Agreement that no referrals shall be made to the GMC as regards any individual in relation to the circumstances of the claim and/or litigation 6. A written understanding that there is no known basis on which Cs application for a return to training on an open competition basis would be precluded. Any matters relating to the facts of this claim or its conduct shall not be regarded as an impediment to training I appreciate that ﬁnalising ts and cs may take time tomorrow. We will be coming tomorrow in negotiating rather than litigation mode so cannot envisage any need for witnesses to be present: this includes Dr Brooke.”

[122]Mr Cooper called Mr Milsom to say the Respondent would have a difficulty with the settlement being confidential. There were then continued without prejudice discussions between the three counsel in various Page 28 of 67 combinations. These were held in the Tribunal in waiting rooms and in the corridors and were not minuted or noted. Mr Cooper could not recollect the exact sequence of the conversations but in his statement he sets out his recollection of the substance of them. He is clear that the position he set out on behalf of the Respondent was consistent, namely that costs would be an issue if the Claimant lost and was found to be untruthful. He emphasised that by rejecting the drop hands offer and losing at trial may lead to an application by the Respondent for the remaining trial costs and that he maintained that there would be an issue about costs, not that costs would definitely be asked for. There was discussion about what costs were being referred to and Mr Cooper’s recollection is that he did not say the Respondent would apply for any particular type of costs.

[123]During this hearing there were several references to wasted costs in the previous litigation. Wasted costs is an award against legal representatives. There was a possibility of wasted costs in relation to the late disclosure of covert recordings the Claimant had made which came out during his evidence. Mr Cooper says it was HEE that raised this and not the Respondent. Given that this would be an order against the Claimant’s then solicitors, Mr Cooper says it made no sense to raise it as part of without prejudice negotiations. Mr Milsom’s evidence

[124]Mr Milsom’s witness statement was not prepared for this hearing but was prepared in support of the Claimant’s application to set aside the settlement agreement and was adopted for this hearing. Mr Milsom approved the statement on 11 December 2018 before some of the statements were published by the Respondent. Mr Milsom was constrained, as was Mr Cooper, by legal advice privilege that had not been waived. His explanation for contacting Mr Cooper on 5 October 2018 was to discuss trial schedule and wider issues and it was during this conversation that the prospect of settlement was raised.

[125]In cross-examination Mr Milsom said “I was concerned as to the direction of travel, and clearly I couldn't speak to Dr Day about his evidence because he was in purdah. On the express footing that I had no instructions and could take no instructions, I explored the possibility of what I described as the "safe landing". The reason that I used that phrase is because there was a lot of publicity about all of this, that had been going on for some years, and I had concerns as to the reputational risk of an adverse judgment to Dr Day.” Mr Milsom’s evidence is that in the discussions about costs there was no specific link to the truthfulness or otherwise of the Claimant’s evidence.

[126]During the course of the Claimant’s cross examination by Mr Moon in the previous proceedings when he was being asked about covert recording he had made, the Claimant was asked questions about his integrity in making covert recordings, and it was put to him that integrity was part of the GMC standards of the expectation on all registrants. Mr Milsom, in his evidence to this Tribunal, said he did have concerns about this and that it was possible he overestimated that risk. Mr Cooper said that during the without prejudice negotiations his Junior Ms Motraghi who has experience in this type of work, said that a published judgment would fall under the radar of the GMC without a specific referral or complaint. Page 29 of 67

[127]Mr Milsom took issue with the term ‘threat’ in relation to the costs part of the without prejudice negotiations. Mr Milsom said that he told the Claimant that the wasted costs order was not something he (the Claimant) should worry about as it would be an order against his solicitors and not him personally. His evidence could not go into any detail because of legal advice privilege. The Claimant’s position is that he believed that it would be an order against him personally.

[128]The Claimant sent a letter before action for negligence to Mr Milsom arising out of the settlement agreement. Mr Milsom responded to that letter and said “He [that is the claimant] confirmed in cross-examination that he had purchased a recording device some days prior to the meeting and then asserted that his decision to record the meeting had been impulsive. He had to accept that this was not the case." From the transcript of this hearing the following question and answer is recorded: “Q. Just so we are all absolutely clear, this is a separate issue to the integrity/lack of integrity/appropriateness, et cetera, of making the recording; this is an issue about whether the claimant's evidence on oath about that fact was accurate? A. Yes. It was about the disconnect between purchasing equipment and asserting that it was an impulsive decision to record.”

[129]Mr Milsom accepted there was no threat to refer the Claimant to the GMC if the Claimant did not settle the case although he accepts that the GMC was mentioned by Mr Moon KC in a line of questioning on behalf of HEE about the Claimant concealing the fact he was recording a conversation.

[130]It was difficult for Mr Milsom to say much more about what caused the Claimant to decide to settle as he was constrained by legal advice privilege. Mr Milsom candidly said that some of the emails he sent at the time of the settlement process were not entirely accurate.

[131]On Friday 12 October 2018 there was agreement between the parties set out above, pending the Respondent’s board approving it, which it did on Sunday 14 October 2018. The Tribunal’s findings

[132]The Claimant lodged complaints about Mr Milsom, Mr Milsom had to recall in detail what had happened at that time and this information was available to the Tribunal. In circumstances where not all conversations were documented it is inevitable that there may be some minor differences in recollections of those participating in the conversations. At the time of the discussions, neither Mr Cooper nor Mr Milsom anticipated that they would have need to give evidence on these matters.

[133]Whilst accepting there are some differences in the recollections of Mr Milsom and Mr Cooper. the Tribunal finds that 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 Page 30 of 67 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.

[134]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.

[135]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.

[136]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 crossexamined. 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.

[137]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 Page 31 of 67 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.”

[138]The Tribunal considered why Mr Milsom initiated the without prejudice discussions. The Tribunal finds that the only reason Mr Milsom could have for seeking without prejudice discussions with Mr Cooper as and when he did, was that the Claimant’s case was not going well. The Claimant does not agree and says he thought his case was going well. Mr Milsom says he was worried about the Claimant’s reputation but was reluctant to say the Claimant was lying. The Tribunal asked itself why, if the Claimant’s case was going well, would his reputation be at risk? If it was at risk more generally because of the strength of his case then the Tribunal would have expected Mr Milsom or the Claimant’s solicitors to have appreciated that and have advised the Claimant accordingly, and/or sought to hold without prejudice conversations with the Respondent before the hearing began. As the timing was two days into the Claimant’s crossexamination, the inevitable conclusion is that the Claimant’s evidence was not going well and raised the prospect that he might be unsuccessful.

[139]The request to speak to the Claimant while he was in purdah, is further evidence of the seriousness which Mr Milsom took about the Claimant’s prospects of success and possible costs consequences. Whilst saying the timing was in order not to eat into time after the Claimant’s evidence with settlement discussion starting after the Claimant’s evidence had concluded an inference is that he did not want the Claimant to continue with his evidence at all. The only reason for this would be that his evidence was damaging to him and his case.

[140]The Claimant has characterised the Respondent’s position on costs as them being threats. The Tribunal disagrees and finds them to be part and parcel of the normal process of litigation and therefore not threats as such. When litigating, the issue of costs must always be considered even though in the Employment Tribunals costs are not routinely awarded. On balance the Tribunal is satisfied that Mr Cooper’s evidence is accurate. There is nothing that Mr Milsom has said to materially contradict it. What is not known is what Mr Milsom told the Claimant at the time. The Tribunal would expect, given Mr Milsom’s experience, that he relayed the costs situation appropriately but obviously we can not be sure given the constraints of legal advice privilege. We are however satisfied that 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.

[141]We hear what the Claimant and Mrs Day says about why they settled and their belief that they may be subject to a costs order of about £500,000. It is unlikely that any costs order, had one been made, would have been of this Page 32 of 67 magnitude as means are considered when assessing costs. Whilst we have no direct evidence of this, we would have expected Mr Milsom and the Claimant’s solicitor to tell the Claimant this, and in any event, it would have been easy for the Claimant to have looked this up for himself if he was unsure. The Claimant had some knowledge of costs as he was awarded costs to be paid to him by HEE in respect of litigation about worker status. The Tribunal notes that the Claimant not only had Mr Milsom’s legal advice but also the advice of his solicitors.

[142]The other question the Tribunal considered is why the Claimant would believe he was at such a risk of costs if, as he says, he considered his case to have good prospects and his evidence to have been honest and good. If this had been his belief, then why would he have believed that there was a significant chance that costs would be awarded? The only conclusion is that 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.

[143]The Tribunal notes the issue about a referral to GMC as being a reason to settle. However, this does not fit well with the issue of costs threats being made.

[144]The Tribunal does not find that there was a costs threat in the way the Claimant has put forward. It was however not just that Mr Milsom approached the Respondent about settlement, but that there was an explanation of the genuine risk of costs should the Claimant be unsuccessful with a finding of being untruthful. The inference to be drawn of Mr Milsom approaching Mr Cooper was the way the Claimant’s case was going. The way the costs issue was made was that if the Claimant pursued his claim, lost and had adverse findings as to truthfulness then costs would be an issue. (The Tribunal’s emphasis) The terms of settlement

[145]The settlement agreement did not contain a confidentiality clause. The Claimant had initially requested one, but the Respondent did not agree. Mr Travis said that was because the Trust wanted openness and transparency about the litigation.

[146]The relevant parts of the agreement are as follows: “WHEREASa. A. The Claimant brought claims against the Employer and HEE in the South London Employment Tribunal for unlawful detriment on grounds of having made protected disclosures in connection with his participation in and departure from a specialist training programme provided by HEE and in connection with his employment with the Employer between August 2013 and August 2014. Page 33 of 67

b. B. The final hearing of those claims commenced on 1 October 2018 and in the course of that hearing the parties have reached agreement for the withdrawal and settlement of those claims on the terms set out herein.

c. C. This Agreement is in full and final settlement of those claims and all or any claims the Claimant has and/or may have against the Employer and/or HEE, their directors, officers, agents and/or employees arising out of or in connection with his employment and/or training and/or their termination.

d. D. The parties intend this Agreement to be an effective waiver of any such claims and agree that it constitutes a valid settlement agreement under section 203 of the Employment Rights Act 1996.” “2. FULL AND FINAL SETTLEMENT

2.1 This Agreement is in full and final settlement of all or any claims or other rights of action (whether under the laws of England and Wales, European Union or any other law) that the Claimant has or may have against the Employer and/or HEE, their directors, officers, agents or employees arising out of or in connection with the Claimant’s employment and/or training and/or their termination whether under common law, contract, statute, or otherwise including but not limited to: a. claims for unlawful detriment on grounds of public interest disclosures under Parts IVA and V of the Employment Rights Act 1996, whether the subject of the Claims or otherwise; b. constructive and/or unfair dismissal under the Employment Rights Act 1996; c. breach of contract, including without limitation wrongful dismissal; d. any other claim under the Employment Rights Act 1996;

e. any claim, including a claim for damages for harassment under the Protection from Harassment Act 1997;

f. any personal injury claim associated with any of the aforementioned claims; and

g. any other personal injury claim save where the Claimant is reasonably not aware of the facts and matters giving rise to such claim.

2.2 This Agreement is also in full and final settlement of all or any claim or application for costs or expenses that any of the Parties may have against any other Party or Party’s representative, whether in relation to the Claims or their conduct or otherwise. …….” “SCHEDULE 2 AGREED POSITION STATEMENT Page 34 of 67 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.”

[147]The agreement had all the usual legal technicalities to be found in any settlement agreement.

[148]In the process before the 2014 case was heard in October 2018, the Claimant achieved a significant judgment from the Court of Appeal in relation to the worker status of junior doctors with HEE. This is an important judgment and one which will benefit junior doctors throughout the country. This is acknowledged in the agreed statement forming part of the settlement agreement.

[149]The Claimant set up a crowdfunding website to fund his litigation for the original proceedings and it provided funding support for subsequent actions. There was no anticipation of the current proceedings at the point the website was set up. He has many supporters. He extensively uses twitter to tweet and retweet items related to his litigation. The Tribunal has been told that his crowdfunding page includes items relating to the current litigation. He has also received support from the BMA. The published statements

[150]Following the settlement, the Respondent made statements on its website and communicated with various stakeholders. It is these communications which are the subject of this hearing. The Claimant believes parts of the statements to be false and detrimental to him. The parts underlined are the parts of the statements that the Claimant takes issue with. They are taken from the agreed list of issues. a) Statement 1 – 24 October 2018 “Statement from performing Lewisham and Greenwich NHS Trust We employed Dr Chris Day as a junior doctor organisations (Emergency Medicine, Core Training Year 2) at Queen Elizabeth Hospital (QEH), under a ﬁxed-term training Page 35 of 67 contract from August 2013 until August 2014. Dr Day raised a number of concerns related to a night shift in January 2014, when he was working in the intensive care unit (ICU) at QEH. The concerns were about whether there were enough doctors working on the night care shift covering the medical wards. On the night in question, two doctors who had been scheduled to work on the medical wards had failed to come in. As a result, our site PALS manager took action to deal with this unexpected stafﬁng shortage, including arranging for the on-call consultant to come in and provide additional cover. Dr Day wrote to the Trust Chief Executive in August 2014, just before leaving the Trust at the end of his ﬁxed term contract detailing complaints about how his concerns had been handled. As a result we commissioned an external investigation into all the issues he had raised. The external investigation found it had been2 appropriate for Dr Day to raise his concerns and that the Trust had responded in the right way by calling in the on-call consultant to provide additional support. The investigation also found that there was no evidence that there were patient safety issues as a result of what had been an unexpected situation. We wrote to Dr Day to let him know the outcome of the investigation. In October 2014, Dr Day submitted an Employment Tribunal claim for unfair dismissal and whistleblowing detriment (i.e. Treating Dr Day unfairly because he had raised whistleblowing concerns). He submitted a further claim for additional whistleblowing allegations in April 2015. He subsequently withdrew his unfair dismissal claim in 2015. Dr Day‘s claims were also submitted against Health Education England (HEE). Originally Day's case against HEE was rejected on the grounds that HEE was not his employer. However, this was overturned after Dr Day appealed the decision. Following this, HEE has worked with the British Medical Association and NHS Employers to ensure whistleblowers can take legal proceedings against HEE for detriment. The Employment Tribunal hearing for whistleblowing detriment brought by Dr Day commenced on 1 October 2018 against the Trust and HEE. After six days of evidence. Dr Day withdrew his case. The following statement was agreed by all parties: "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 2 Issue 4.1.c Page 36 of 67 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. 3Some 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. 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 case 4 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 4that 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 claim5 – 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 3 Issue 4.1.(d) 4 Issue 4.1 a i 5 Issue 4.1.(a).ii Page 37 of 67 before making any decisions. 6On 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. "We the have stated before that we believe this approach was made because it was clear to Dr Day's legal team that his case was not going well and was going to fail. Certainly, no pressure whatsoever to start settlement discussions had been placed on Dr Day or his legal representatives by the Trust or our legal representatives. "It is standard practice in settlement negotiations for the parties to discuss the risks and possible outcomes on all sides. When they made their approach about settlement discussions,7 Dr Day's legal representatives indicated that it would be helpful to them for the Trust:

• To state what our position would be on costs if the tribunal were to dismiss Dr Day's claims and make ﬁndings that he had not been truthful in his evidence 6 Issue 4.1

(a) iii 7 Issue 4.1

(b) Page 38 of 67

• To confirm whether we were prepared to agree not to make a costs application if Dr Day withdrew his application at that stage

• To indicate whether the Trust would agree to allow them to discuss these matters with Dr Day before he had ﬁnished his evidence (as an exception to the normal rule that a party may not discuss the case whilst giving evidence). “In response to this request, 8the Trust’s legal representatives conﬁrmed that if the tribunal were to dismiss Dr Day’s claims and make ﬁndings that his evidence was untruthful, then there would be an issue as to costs. This reﬂects that we are an NHS body responsible for public funds. In the discussions about a settlement, the Trust also confirmed that if Dr Day withdrew his claim at that stage, we would agree not to make any application for costs, and agreed to the request by Dr Day’s representatives to be allowed to discuss those matters with him even though he had not finished giving evidence. “Dr Day's legal representatives would have been well aware that costs are only awarded in exceptional circumstances, usually requiring some unreasonable conduct in bringing or conducting the claim. such as relying on a misleading or untruthful account. Their assessment of this risk would no doubt have inﬂuenced their decision to start settlement discussions with the Trust. Dr Day’s legal representatives would also been aware that 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 fullcosts are rarely awarded. “No financial payment was made by the Trust as part of the settlement, and our Board agreed to a joint statement with everyone involved, including Dr Day. This is included in our original statement. We do agree that Dr Day raised patient safety concerns in good faith.” Editors’ notes * Specifically, we confirm that the Trust and our legal representatives:

• Did not issue an ordinary costs threat in respect of the entire 21 day hearing if Dr Day cross-examined any of the Trust’s witnesses and lost the case

• Did not threaten a wasted costs application against Dr Day's legal representatives

• Did not threaten Dr Day's legal representatives with a referral to their

• legal regulator

• Did not threaten referring Dr Day to the GMC and have no intention of doing so.”

[151]Having set out the statement and the terms of the settlement agreement The Tribunal went on to consider the agreed issues. Given the nature of this claim it has considered matters in a thematic way rather than a chronologically. There is a chronology appended to this judgment which sets out when matters happened. Are the statements a detriment? (Issues 4 to 4.1.(d))

[152]The list of issues identifies the parts of the statements that the Claimant considers to be detriments, and which are underlined in the statements set out above. 8 Issue 4.1 (b) Page 39 of 67

[153]Both parties referred to Shamoon and the Respondent also relied on the three other cases set out below. p. Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR, HL, paras 33 – 35 held: ‘A detriment exists ‘if a reasonable worker would or might take the view that [the treatment or action of the employer] was in all the circumstances to his detriment’. q. R (Interim Executive Board of Al-Hijrah School) v HM Chief Inspector of Education

[2018] 1 WLR 1471

(CA) at [48], the touchstone of a detriment is ‘reasonableness of perception of adverse detriment’. r. Pothecary Witham Weld v Bullimore

[2010] ICR 1008

(EAT), Underhill J considered authorities concerned with “cases of a very particular type, namely cases where the employer has taken action in order to protect his position in current litigation”. “In considering whether the act complained of constituted a detriment the starting-point is how it would have been perceived by a reasonable litigant; but such a litigant could not properly regard as a detriment conduct by the employer which constituted no more than reasonable conduct in defence of his position in the litigation.” s. Moyhing v Barts and London NHS Trust

[2006] IRLR 860

(EAT) held that if an alleged detriment is trivial it will not amount to a detriment for the purposes of s.47(B)(1) of the ERA 1996 on the basis that it will be de minimis.

[154]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.

[155]The Tribunal finds that the wording of issue 4.1.(a) (iii) is interesting. The wording is that the Respondent decided not to pursue the Claimant for its legal fees before he withdrew his case. It does not say that legal fees were not discussed in the without prejudice discussions leading to the settlement. However, even taking this into account, the Tribunal finds that it was on settlement that the Respondent decided definitively not to purse costs. The stated position was that if the Claimant lost and was found to be untruthful, then costs would be an issue. This is accurately reflected in the statement published on 24 October 2018 (the first statement) which says “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.” The Tribunal considered whether this was something that was substantial or trivial rendering this de minimus and of course, whether this was said because the Claimant made a protected disclosure. The Tribunal finds Page 40 of 67 that in the eyes of the Claimant’s Crowdfunders this would be significant. They inevitably had concerns and questions about why the Claimant settled and did not go on to conclude the case that they had funded. The impression given here is that the Claimant knew that the Respondent was not going to pursue costs when the Claimant was saying that it was the costs matters that meant he settled. The Tribunal finds that this is a detriment.

[156]The Tribunal has found that Mr Milsom approached the Respondent to ask the Respondent to put forward an offer for him to take to his client. The Tribunal has found that the costs would have been an issue if the Claimant lost with adverse findings as to his truthfulness. Therefore, what is written in the statement published on 10 January 2019 (issue 4.1.(b)) is correct and not a detriment.

[157]The Tribunal considered issue 4.1.(c). It is of note that the Claimant has objected to one part of this sentence, and has not put the whole sentence in his objection to what is said. This is the section referred to by the Claimant. The external investigation found it had been9 appropriate for Dr Day to raise his concerns and that the Trust had responded in the right way by calling in the on-call consultant to provide additional support. The Claimant has taken words out of context. This is unreasonable. The sentence starts with a positive, namely that the external investigation found it appropriate for the Claimant to raise concerns. The way the Respondent was said to have responded was qualified by the rest of this sentence which is not underlined. When looking at the statement as a whole, there is nothing that the Tribunal can see to be detrimental, even considering the Claimant’s submissions. It should be abundantly clear to any objective reader that the assertion is the Trust behaved in the right way in its specific act of calling the on-call consultant to provide additional support and that no other claim of appropriate behaviour is being made here. This is not a detriment.

[158]In relation to issue 4.1.(d), the Claimant’s complaint about this is that the Respondent has actively misrepresented the substance, scope and validity of his protected disclosures throughout the 8 year history of this case. His position is that his disclosures were not limited to January 2014 and his January 2014 disclosures were not limited to junior doctor cover on the medical wards.

[159]The published statements were made in response to the publicity following the conclusion of the 2014 proceedings. Inevitably the focus was on the issues raised in the litigation itself. The Respondent accepts that the Claimant made other disclosures which were not part of that litigation. The fact that it only refers to one disclosure is in the context in which the statement was made. As such, and read in the context of the statement itself, the Tribunal does not consider this to be a detriment.

[160]The other detriments in the list of issues are set out under the section 9 Issue 4.1.c Page 41 of 67 dealing with issues relating to Sir Norman Lamb, the Care Quality Commission (CQC) and letters to stakeholders. Perception by others

[161]The Tribunal also considered whether the statements were perceived to be detrimental by others. In closing submissions Mr Tatton Brown challenged Mr Allen to come up with the Claimant’s best examples. Mr Allen rose to the challenge:a. In his oral submissions, Mr Allen said this: “We have got so many accusations on social media of the claimant being a liar that Norman Lamb had to interrupt to warn people that they shouldn’t be making defamatory accusations”. He then referred to the following pages.

b. P38 oral subs electronic page 10 - line refers to what C saying about lying not the commentators view ????

c. Page 1207 of the main bundle. This is a tweet by Dr Sebastian Hormaeche to Mr Travis: “Please can you confirm whether or not the trust or its solicitors or its barristers made the 4 threats mentioned by @drcmday in the attached screen shot below? The screen shot was of something written by the Claimant and said: “Last month I was emailed by a Telegraph Journalist with evidence that the Trust and HEE were not only referring to the ‘Without Prejudice’ discussions but also that they were not telling the truth about them. These actions and the recent publication of the Telegraph and HSJ articles have enabled me to speak openly for the first time about’ the various threats made that led to the settlement agreement. https://www.telegraph.co.uk/.../nhs-whistleblower-forced-wit...l The threats were as follows. ‘I. An ordinary costs threat against me for the entire 21-day hearing if I cross examined any of the witnesses and lost the case. (Payable by me) 2. Reference to a wasted costs application against my lawyers (payable by them). lhttp:l/www.gwslaw.co.uklwp-conte.../.../-2-012/01/Wasted-costs.pdf) 3. Reference to a referral to the legal regulator for my lawyers. 4. Reference to a referral for me to the GMC. The Tribunal does not find that this shows that Dr Hormaeche thought Page 42 of 67 badly of the Claimant. He is seeking confirmation that what the Claimant said was correct. He was asking the Trust for their side of the story. The Tribunal heard evidence from Dr Hormaeche, and he did not say that he thought less of the Claimant because of the statements put out by the Respondent. His witness statement does not comment on the published statements at all let alone whether he thought less of the Claimant having read them. There is no date for this tweet, and it is assumed it was written after the statements were published as it refers to the Daily Telegraph article which was published on 2 December 2018.

d. Page 225 of the supplementary bundle. This is a tweet by someone called Dan Wilson which says, “I don’t think it’s unreasonable for the trust to pursue costs against him if it was found he lied…call it a threat if you want but there needs to be some deterrent for lying”. To which Sir Norman Lamb responded “PLEASE DO NOT risk making the assumption he lied. This could be defamatory”. The Tribunal does not understand the response from Sir Norman Lamb as Mr Wilson is not saying the Claimant was lying but that if he lied then it would not be unreasonable for the Trust to pursue costs. There is nothing here that suggests that Mr Wilson perceived the Claimant to be lying. This is a legitimate debate on the question of costs.

e. Page 226-227 of the supplementary bundle. These two pages consist of a discussion on Twitter about the costs threats that the Claimant alleged made him decide to settle the 2014 proceedings. They are between Mr Wilson and Mr Lamb and presumably follow on from the tweets at 225. Again, on reading these tweets, there is nothing to suggest that the debate about the costs issue was because of the statements published by the Respondent. For example, one tweet says “But there is a world of difference between possibility of costs being sought (sic) and this being used as an active threat outside the ET. Day took ~£50k costs off HEE during their withdrawal during ET Prelim, so the fact that costs discussed not a surprise.” Again, the participants in this conversation were asking for evidence about the costs threat issue.

f. Page 1279 of the main bundle. This page was referred to, but the Tribunal was not taken to the precise part of this document. It is presumed that Mr Allen was referring to the following paragraph: “The Trust are now causing Dr Day further detriment by publicly denying that they even made any threats at all against him. After causing all this harm to the Doctor, they now want to make him out to be a liar. They have done this in the Sunday Telegraph recently for the whole country to read and our profession which has done him great harm”. The Tribunal finds that it is unsurprising that there was discussion and speculation from the Claimant’s crowdfunding community about why the Claimant settled his claim. This was inevitable given the unusual way the Claimant’s case was funded. This comment is in the context of numerous comments in a thread about the 2018 case and its conclusion. Page 43 of 67 This particular comment is supportive of the Claimant, and does not show that the author thought badly of the Claimant because of the statements. How were the statements prepared? (Issue 6)

[162]One feature of this case is how the three statements were prepared by the Respondent and who ‘signed them off’. This is relevant to issue 6 namely whether the Respondent subjected the Claimant to a detriment on the ground that he had made protected disclosures.

[163]Mr Travis said that in his position as CEO he was the only person able to ‘sign them off’. The term ‘sign them off’ was also attributed to the four doctors by the Claimant and also in emails submitted by the Respondent in late disclosure.

[164]David Cocke did not give live evidence but in his witness statement (which is unsigned) he described the process as he saw it. The Tribunal has been very careful in the way that it has dealt with Mr Cocke’s witness statements given that they are unsigned, and the Claimant did not have the opportunity to cross examine him.

[165]It is common ground that Mr Cocke had no direct knowledge or involvement with the Claimant during his employment with the Trust. He was not aware of the protected disclosures the Claimant made at the time they were made. His first involvement was in 2016 when media outlets approached him for statements on the 2014 case.

[166]His statement said that even though he knew the Claimant had made disclosures, he did not know of the specific nature of the complaints until the 2018 proceedings. His role was to oversee the Respondent’s response to media queries. There was intense media interest in this case even before the hearing in 2018 because of the litigation with HEE regarding employment status. There were articles in the Daily Mail, The Mirror, Public concern at Work, and the Guardian together with broadcast media coverage in 2017 which mentioned the Respondent (even though it was not a party to the employment status dispute with HEE). There was also a raft of tweets and other online comment on this case, from the Claimant and his supporters.

[167]His witness statement said that statements made by the Respondent prior to the settlement were made in reaction to media queries when asked to comment and were not proactively given. He described the process as the Communications team liaising with the relevant teams or individuals to get relevant information, a statement is then drafted, and before it is issued there is final sign off from relevant member(s) of the Trust’s Executive Team. He mentioned the then Chief Executive and Janet Lynch (Deputy Chief Executive at the time). Ms Lynch was not called to give evidence. Mr Cocke acknowledged that he would liaise with clinical leads when gaining information with which to draft the statement. He did not name the individuals he asked for Page 44 of 67 information. Once Mr Travis was employed as Chief Executive he ‘signed off’ the statements. These were the three statements published after the 2014 case was settled.

[168]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.

[169]Mr Cocke was not involved in the settlement of the Claimant’s 2014 claim in 2018. Ms Lynch was involved in this. The settlement agreement was not confidential and contained an agreed statement. However, despite this, the Respondent was concerned about the negative publicity both in the press and on social media believing it was largely one-sided, negative and gave a misleading view of the Trust.

[170]Mr Cocke says in his statement that he was contacted by a journalist, Mr Martyn Halle on 18 October 2018. Mr Halle had also written an article about the 2014 proceedings for The Mirror in August 2017. His statement says that Mr Halle pushed him to give a categorical denial that the trust had threated the Claimant with substantial costs. There is documentary evidence to corroborate this. Mr Cocke says he responded with an additional statement about costs which was agreed by Ms Lynch and Mr Travis. Mr Cocke refers to increasing speculation on social media and the press about the settlement process including allegations that the Respondent had made costs threats to force the Claimant agree to settle. There is evidence of this in the bundles of documents.

[171]Ms Lynch prepared a statement to be published and liaised with the four doctors. Mr Cocke says that his only involvement with the first published statement was to make sure it was in plain English, and he revised the language but not the content. He was involved in drafting the other two statements but did not liaise with the four doctors.

[172]In relation to the first published statement, Mr Cocke says “Janet Lynch told me she had obtained internal sign off on the statement from the senior doctors who had been involved in the Tribunal case, from the Trusts Medical Director and Chief Executive. He did not name the senior doctors. It later became clear that these were the four doctors who were the recipients of the protected disclosures and who had attended the Tribunal when the Claimant was giving evidence in 2018 and were to give evidence. Mr Cocke drafted responses to various journalists who were making enquiries.

[173]As already said, there was a great deal of attention in the press and social media about the case. There were further articles for example on social media by Private Eye. On 5 November 2018 Mr Tommy Greene a freelance journalist working on an article about this case for the Daily Telegraph asked the Respondent for its comments about a proposed article. The article was Page 45 of 67 published on 2 December 2018 in the Sunday Telegraph. The Respondent considered this article was one sided and had taken the Trust’s response out of context. The Tribunal finds this is what prompted the Respondent to publish a further statement on 4 December 2018.

[174]The Tribunal did not hear evidence or have a statement from Ms Lynch. We can see from the documents that she was instrumental in drafting the statements and liaised with the four doctors.

[175]The Claimant’s case is that the four doctors were feeding tainted information about the Claimant because he had raised protected disclosures which in turn meant that the statements were detrimental on the ground of making protected disclosures. The four doctors were not called to give evidence. The late disclosure bundle provided near the end of the hearing has email communications between Ms Lynch, Mr Cocke and the four doctors. The Tribunal has considered these emails carefully. 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.

[176]Having considered these emails the Tribunal concludes that they do not show that the four doctors were feeding false and tainted information to be included in the statement. Dr Harding says in one email “I personally think that the more is written the better as it gets the fact out there, and the facts exonerate the Trust”.

[177]It is the Tribunals conclusion that the official sign off and authority to publish the statements was made by Mr Travis. Whilst there is reference to the words ‘sign off’ by Ms Lynch and Mr Cocke says Janet Lynch told him she had internal sign off from the four doctors, this was not in the Tribunal’s view, an official ‘sign off’ but just their indication they were happy with the content of the statements to be published. The decision to use the statements was made by Mr Travis.

[178]The Tribunal finds that contrary to what the Claimant says, the late disclosure between Ms Lynch and the four doctors which contains emails relating to the settlement does not indicate any malice on the part of the doctors, merely a wish to set the record straight from their point of view.

[179]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. The Claimant had to explain to his supporters who had Page 46 of 67 funded his litigation, why he had settled without receiving any compensation. The Tribunal accepts the Respondent’s evidence that it felt had to respond to the publicity in the press and social media to protect its reputation and put the record straight. The protected disclosures had no material influence on the way the statements were drafted. The Protected disclosures (Issues 2 to 3.2)

[180]In the 2014 litigation, the Respondent accepted most of the disclosures made by the Claimant to be protected disclosures. They did not agree that the disclosures pertaining to concealment were protected. Item 2 of the list of issues addresses this. Of the disclosures not accepted by the Respondent, only one is relevant as the others (2.1 (xi) to (xv) relate to HEE. The only disclosure not accepted which is relevant to the Respondent is at 2.1 (x).

[181]It is not necessary for the Tribunal to make findings about this one outstanding disclosure or the issue of concealment. The fact that the Respondent accepts that a protected disclosure was made is sufficient. This is not a situation where a particular disclosure has been ascribed to a particular detriment. Instead, all the disclosures are relied on for all the detriments. Therefore, without making any findings, the Tribunal has simply taken this part of the Claimant’s case at its highest and considered this case on the basis that all the disclosures relating to the Respondent apply. The ‘in employment’ issue (Issue 5)

[182]S47B Employment Rights Act 1996 deals with “Protection from suffering detriment in employment”. If any detriments found are not in the employment context then the Tribunal does not have jurisdiction to hear them. s47B(1) provides: “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 ground that the worker has made a protected disclosure.''

[183]The Respondent’s position is that any detriment that may be found was not in the employment context but in the context of the Claimant as a crowdfunded litigant. It relies in part on the terms of the settlement as evidence that any detriment found was not in the employment context as set out above.

[184]The Respondent relied on Tiplady v City of Bradford MDC

[2019] EWCA Civ 2180

. This case held that the best approach was that the individual must have suffered the detriment ‘as an employee’ with the emphasis being the individual’s position, and not the functions of the employer. It was held that this should not be construed too narrowly given the protective nature of s 47B. It is not necessarily confined to actions at the place of work or during hours of work and it is not to be identified with 'in the course of employment'.

[185]The Respondent argued that the Courts approach to whistleblowing detriments has been influenced by discrimination case law. The Respondent cited Woodward v Abbey National Plc (No. 1)

[2006] ICR 1436

which held that “in employment” meant “in the employment relationship”; Aston v The Martlet Group Ltd Page 47 of 67

[2019] ICR 1417

which held “protection from discrimination after an employment relationship had ended depended on satisfying section 108 of the Act, which required that the discrimination “arises out of and is closely connected to” the relationship and, on the facts, the withdrawal of the goodwill offer could not be said to have been “closely connected to” the claimant's former employment; and that, accordingly, there was no jurisdiction to entertain the post-termination victimisation claim.”

[186]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.

[187]It was also submitted that the Claimant’s main witness statement (paragraph 242) in relation to him making a covert recording of conversations supports the Respondent’s argument. He said: “It should also be noted that the covert audio was taken by me of formal meetings after my employment at the Respondent had ended and whistleblowing claims were registered with ACAS. At the point of me taking covert audio, I had commenced the process of adversarial litigation and my trade union had made legal threats of whistleblowing claims. That is very different from an employee recording an informal interaction with no justification which is very much how the Respondents wished to paint the covert audio.”

[188]The Respondent also relies on paragraph 8 of the Claimant’s witness statement where he says: “the focus of the present claim is on what the First Respondent has chosen to say publicly and to MPs about the substance of my first whistleblowing case and about how it settled”.

[189]The Respondent said that the Claimant did not invoke the bullying and harassment policy or raise a formal grievance as he would have done if he was in employment. It was submitted that the Claimant’s claim arises out of the Respondent’s alleged reaction to what the Claimant said in the October 2018 hearing and that the detriments he now complains of are closely connected to that hearing and not to his previous employment with the Respondent.

[190]The Claimant also relied on the Woodward case and distinguished this case from the Tiplady case which he considered had been wrongly decided and that if necessary he would argue this in the appellate courts. The Claimant submitted: “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 Page 48 of 67 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”. In any event he didn’t stop being a doctor when he (by necessity caused by R’s actions became a crowdfunder.

[191]The Tribunal considered this point and could not agree. Ms Edwards and Judge Martin found that the Claimant was not acting “in employment” but was acting as a crowdfunded litigant. They accepted the arguments put forward by Mr Tatton Brown. Ms Forecast however preferred the argument put forward by Mr Allen that the Claimant was acting “in employment” in this litigation. Therefore by majority the Tribunal found that the Claimant was not acting ‘in employment’. The outcome of this case does not turn on the Tribunal’s finding on this point so no further detail is required. The Settlement agreement

[192]The settlement agreement which the Claimant entered in 2018 is set out above. The Claimant had tried to set aside this agreement, but this was refused first by the Employment Appeal Tribunal and then by the Court of Appeal. The issue relating to the settlement agreement in this case is whether this agreement precludes the Claimant from pursuing this claim.

[193]The Claimant submitted that “For R to suggest in para 16 of its opening Submissions that for C to agree to clause 3.1 (a) excludes him for arguing that things that hadn’t yet happened amounted to detriments in the field of employment is to propose a discriminator’s charter. The words ‘or in the future’ in clause 3.1.(a) are clearly for the purpose of preventing the Claimant from bringing a claim in the future about something that had already happened at the date of the settlement agreement but was not already the subject of litigation.”

[194]The Respondent submitted in paragraph 16 of its opening statement: “It is also to be noted that in the Settlement Agreement [992] that the C agreed to when withdrawing the 2018 claim, the C provided a warranty at clause 3.1(a) that he was aware of no additional claim (other than those referred to in clause 2.1 which he expressly settled) at the time of the Agreement or in the future “arising out of or in connection with” his employment. He further warranted (clause 3.1(b)) that he would not bring any claim “arising out of or in connection with” his employment, including a claim for detriment on the grounds of his having made public interest disclosures. It is assumed that the C therefore accepts that the current claim does not arise out of and is not connected with his employment.” The one reference to the settlement agreement in the Respondent’s closing submissions is in relation to the ‘in employment’ issue.

[195]Having read these parts of the parties’ submissions, the Tribunal considers that they are talking about different issues. The Respondent is not arguing here that the Claimant is precluded from bringing this claim, indeed that is not in the agreed list of issues. The Respondent uses the settlement agreement to back up its case that the detriments are not in the employment field as set out in issue 5 of the agreed list of issues. Page 49 of 67

[196]In coming to its conclusions, the Tribunal had to consider the way that evidence was given and presented to it. The Tribunal is not intending to comment on all the witnesses it heard from.

[197]The Tribunal found the Claimant to be evasive when being cross examined. On many occasions he did not answer the question put to him, instead saying what he wanted to say. The same question was frequently put several times without the Claimant answering it. Rather than engaging with the issues in this case, the Claimant appeared to be wanting to rerun the 2014 case which he settled. The only relevant part of that case were the protected disclosures he made when working for the Respondent which had largely been agreed by the Respondent as being protected.

[198]The Tribunal found that Mr Travis gave answers to the questions he was asked. Whilst there were some issues for example saying there was no board meeting note of the agreement to settle the 2014 case, overall, the Tribunal found his evidence to be credible. The issues relating to disclosure have been set out above together with the Tribunals criticism of that process. However, notwithstanding this, the Tribunal broadly accepts the evidence given by Mr Travis. Sir Norman Lamb (issue 4.2)

[199]The Tribunal had a 9-page statement from Sir Norman Lamb, and he attended to give evidence. Sir Norman was a supporter of Dr Day and had met him on several occasions both prior to and after the 2018 hearing. It can be seen from his statement, and he confirmed this in cross examination, that his knowledge of the 2018 case and how it settled came from the Claimant. The documents he saw were also provided by the Claimant. Sir Norman was an employment lawyer before entering parliament and would therefore be aware of how Employment Tribunals run and how costs feed into the process. He is right, that in many cases costs are not mentioned, but it is the Tribunal’s experience that in many cases costs are mentioned especially where the Respondent is a public body.

[200]Sir Norman was not aware of the legal advice that the Claimant had received leading up to his decision to settle the case. He was not aware that it was Mr Milsom who first approached the Respondent to ask if settlement might be a possibility. He accepted in cross examination that if there was a basis for raising the issue of credibility then there could be costs consequences. He then said his issue was that it was denied by the Respondent.

[201]Sir Norman met with Mr Travis with the Claimant and his wife. This meeting was initiated by Mr Travis. After this meeting Sir Norman sent Mr Travis a letter on 28 January 2019 saying: “Thank you for coming to meet with Dr Chris Day and myself on 14 January. I refer you to the enclosed letter sent to me from Dr Chris Day on 23 January. I have read through Dr Day’s letter very carefully. Your urgent response would be appreciated. It Page 50 of 67 is very important that you confirm whether, in the light of the contents of Chris’s letter, you stand by all the statements made by the Trust and publicly available on your Trust website. Further, is there anything in Chris Day’s letter which you believe is in any way inaccurate? It is my belief that aspects of the Trust’s public statements (as referred to in Chris Day’s letter) are severely defamatory and should be withdrawn forthwith and that there should be a full apology. I should stress again that the inaccuracies in the public statements by the Trust are not only defamatory but are deeply distressing. They are damaging to Chris Day‘s reputation.”

[202]By this time the Claimant had made his application for reconsideration of the judgment dismissing the 2014 proceedings. Mr Travis responded to Sir Norman’s letter as follows: “Since our recent meeting, I have spent a considerable amount of time looking into the matters you and Dr Day put to me at the meeting, as well as points raised within subsequent correspondence. Further to this, I have recently made comments on a details written response to you. However, in light of Dr Day’s email dated 5 February to the London South Employment Tribunals, in which he as included our recent correspondence, I do not feel it would be appropriate for me to respond in writing to you or Dr. Day at the current time. Noting the need to allow legal proceedings to progress, I remain keen to meet with you as planned on the 6 March. At this meeting, I will provide further context on the points raised at our last meeting and by Dr Day in his subsequent letter to you. I am also keen for us to have a wider conversation to identify how me might move the current situation forward in a constructive way. This may include discussion of the steps that the Trust could now take to Assist Dr Day with a return to the national training programme, and how I plan to provide assurance to a future generation of junior doctors at my Trust that any concerns they raise will be effectively resolved in a supportive way.”

[203]On 18 February 2019 Sir Norman replied expressing his concern that the Trust had failed to address the “clear inaccuracies in the public statement made by the Trust” and “I would urge you again to seriously consider the analysis I enclosed with my previous letter from Chris Day and to act upon it so as to bring to an end what we believe to be defamatory comments in respect of Chris Day.”

[204]On 6 March 2019 Mr Travis sent Sir Norman a 4-page letter in which, amongst other things he said: “The Trust recognises that it was an unusual step to make these statements, but considered that this actions was necessary in light of the very extensive level of interest and discussion in the public domain in respect of Dr Day’s Employment Tribunal claim, and the wider circumstances of the case. Each statement was in response to questions raised and very serious allegations about the Trust, notably on social media following the settlement of Dr Day’s claim in October 2018. ………. I have considered carefully whether or not the Trust should add anything by way of further clarification or detail in relation the three statements published. I have Page 51 of 67 concluded that it is not necessary or appropriate to do so, and this is for two reasons. The first is that I am satisfied that, taken together, the three statements are accurate and to comment further would not be in either side’s interests. The second is that there are ongoing legal proceedings by reason of Dr day’s outstanding application to the Employment Tribunal for reconsideration of the dismissal judgment and to set aside the settlement agreement for his £5.5m claim. ……”

[205]There was a further meeting between Mr Travis (who was accompanied by his colleague Ms Anderson) and Sir Norman on 6 March 2019. This was followed up with a letter from Mr Travis to Sir Norman dated 3 April 2019. By this time the Claimant had presented his claim in relation to this case. Mr Travis again reiterated that the statements would not be changed. In this letter Mr Travis explained that Ms Anderson had carried out a review and explained the outcome of that review.

[206]The Claimant submitted that the issue was not whether Mr Travis was silent but whether he responded to Sir Norman’s request to justify or remove the statements. The Respondent submitted that Mr Travis disagreed with the Claimant’s suggestion that the reason he did not engage with the points raised by the Claimant and to diminish the seriousness of the concerns that the claimant had raised and to portray him as someone who brought a vexatious claim. It was also submitted that this was not the detriment complained of which was that the Respondent deliberately failed to respond to Sir Norman’s request on 28 January to justify or remove the public statements on the website.

[207]The Tribunal notes that the list of issues has been agreed by both parties and that the Claimant is represented by Mr Allen KC. In these circumstances the Tribunal must consider the issue as it has been drafted. The way it is drafted is in relation to a response to the request. The Respondent did respond to the request albeit not in the way that the Claimant had hoped. This detriment is therefore not made out. The CQC (issue 4.3)

[208]This issue states “Deliberately fail to remove and /or update their public statements once contacted with concerns about the statement from the Care Quality Commission and or Sir Robert Francis KC”. The Claimant accepted that Sir Robert Francis had not contacted the Respondent and withdrew this aspect of his claim during his evidence.

[209]Mr Travis’ evidence is that he met with the CQC on 29 March 2019. His evidence was that he was imparting information to the CQC that Ms Anderson had conducted an informal investigation and that he was comfortable with her conclusions. He accepts that there may have been a discussion about whether he was going to remove the statements, but was adamant that there was no such request from the CQC. The Claimant referred to page 1426, which is the document referred to in the preceding paragraph. The Tribunal finds that this does not support the Claimant’s case as he suggests. Nowhere in that document does it say that the CQC asked the Respondent to remove or update the statements. Page 52 of 67

[210]On 29 May 2019 Ms Ellen Armistead, Deputy Chief Inspector of Hospitals wrote a letter to Sir Robert Francis KC. This dealt with several other matters which were redacted. In this letter it is said that the CQC shared the concerns about the content and tone of the statements and that they have taken up their concerns with the Trust, who told the CQC that following the advice from their lawyers they intended to keep the statements on the website as the case was having a negative impact on those considering applying for jobs and that Mr Travis was confident the statements reflected the version of events as they happened.

[211]There was no evidence that the CQC asked the Respondent to remove or update the statements. The Tribunal accepts that there is evidence of the CQC having concerns but that is a different matter. Letters to MPs and local public officials (Issue 4.4)

[212]This issue refers to Mr Travis writing to several local MP’s and local public officials on 4 December 2018. In these letters he enclosed the 23 October 2018 and 4 December 2018 statements. The issue as agreed states “This material, that was purportedly to fully brief those MPs and public officials, contained untrue and detrimental material (as particularised in paras. 33 and 36 of the Amended Grounds of Complaint) (“AGOC”). Paragraph 33 and 36 of the ACOC refer to the alleged detriments as underlined in the statements as set out earlier in this judgment.

[213]As the Tribunal has found, 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. Time Limits (Issue 1.2)

[214]The Respondent’s case is that all alleged detriments that took place prior to 1st November 2018 are out of time as ACAS received the Early Conciliation notification on 31st January 2019. Given the Tribunal’s finding, the issue of time is not determinative and consequently the Tribunal did not spend time deliberating on this issue. However, given the Tribunal only found one of the matters complained of to be a detriment and that detriment was in the statement published on 4 December 2018 that detriment was presented within the statutory time limits.

[215]In all the circumstances, the Claimant’s claims fail and are dismissed. Page 53 of 67 ……………………………………………… Employment Judge Martin 15 November 2022

The relevant law

[1]In respect of the claim against R1, if any of the alleged detriments occurred outside the primary three-month time limit pursuant to section 48(3) of the Employment Rights Act 1996 (‘ERA’) as extended by s207B: 1.1. Did that/those detriment(s), together with any or all of the other alleged detriments, form a series of similar acts or failures to act for the purposes of ERA, s48(3)(a) and/or an act extending over a period for the purposes of ERA, s48(4)(a) which ended within the primary time limit (as extended)? 1.2. If not, was it not reasonably practicable for the complaint to be presented in time and if so was it presented within such further period as the Tribunal considers reasonable for the purposes of ERA, s48(3)(b)? Protected disclosures 1.3. To the extent not admitted (as to which see paragraph 3 below) Did the Claimant make any or all of the following communications: Alleged communications to R1(i) Statements made by the Claimant to Dr Roberts in a phone call and email on 29 August 2013 that, inter alia, doctor/patient ratios and medical supervision was inadequate and a risk to patients at Woolwich ICU (D);

(ii) Statements made by the Claimant in an email forwarded to Dr Harding, Assistant Medical Director for Professional Standards, on 3 September 2013 that, inter alia, doctor/patient ratios and medical supervision were inadequate and a risk to patients at Woolwich ICU (D);

(iii) Statements made by the Claimant to Joanne Jarrett, the off-site duty manager, in a phone call and email on 10 January 2014, that, inter alia, the Trust’s arrangements at Woolwich hospital for that night were putting patient safety at risk (D); Page 55 of 67

(iv) Statements made by the Claimant to Joanne Jarrett in an email on 14 January 2014 that managers were providing false information and failing to investigate and deal with patient safety issues at Woolwich ICU (D/F);

(v) Statements made by the Claimant to Joanne Jarrett in an email on 14 January 2014 about attempts to create confusion about the patient safety issues he raised and present what had actually happened as a consequence of his competence rather than a matter of patient safety (D/F);

(vi) Statements made by the Claimant to Dr Harding during a meeting on 21 January 2014 that the Trust was failing to investigate and deal with patient safety issues at Woolwich ICU (D/F);

(vii) Statements made by the Claimant to Dr Harding and Dr Ward in an email on 29 April 2014 to complain about the level of risk patients and the Claimant were exposed to, giving false information and attempts to confuse and discredit the safety concerns the Claimant had raised (D/F); Alleged communications to R1 and R2

(viii) Statements the Claimant made to Dr Brooke in a meeting on 29 August 2013 where escalation of the ICU safety concerns within HEE were discussed and a subsequent email on 30 August 2013 reflecting the 29 August meeting (D);

(ix) Statements the Claimant made in an email to Dr Brooke, his Educational Supervisor and the Health Education South London (HESL) Emergency Medicine Training Programme Director, on 2 September 2013 that, inter alia, doctor/patient ratios and medical supervision was inadequate and a risk to patients at Woolwich ICU (D);

(x) Statements made by the Claimant on 3 June 2014 to the ARCP panel (which included a senior doctor from the Trust, Dr Brooke) about patient safety at Woolwich ICU, the hospital arrangements for 10 January 2014, the events of that night and subsequently and attempts by Trust management to discredit him and present the issue as his competence rather than patient safety (D/F); Alleged communications to R2 Page 56 of 67

(xi) Statements made to Dr Lacy in an email on 5 June 2014 about, inter alia, patient safety at Woolwich ICU and the false statements included in his ARCP report (D/F);

(xii) Statements made to Dr Lacy in a meeting on 6 June 2014 about, inter alia, patient safety at Woolwich ICU and attempts by Trust management to discredit him and present the issue as his competence rather than patient safety (D/F);

(xiii) Statements made by the Claimant to Dr Chris Lacy, Deputy Head of School of Emergency Medicine, in a letter on 12 June 2014, that HESL was failing to investigate why false statements had been made about his ability to cope, need for support, counselling and psychiatric assistance and lack of engagement with his Education Supervisor (D/F);

(xiv) Statements made by the Claimant to Gary Waltham in a letter on 13 August 2014, that HESL was failing to investigate why false statements had been included in his ARCP report (D/F);

(xv) Statements made to Dr Andrew Frankel and Gary Waltham during a meeting on 2 September 2014 that, inter alia, doctor/patient ratios and medical supervision were inadequate and a risk to patients at Woolwich ICU, the Trust and HESL had failed to investigate and deal with this and the Trust and HESL had failed to investigate and report what had been said to the ARCP panel about him (D/F)? 1.4. In respect of each such communication made by the Claimant: (a) Did it constitute a disclosure of information for the purposes of s.43B ERA? (b) Did the Claimant reasonably believe that it tended to show (as indicated in paragraph 3.1 above by letters ‘D’ and/or ‘F’): D: “that the health or safety of any individual has been, is being or is likely to be endangered” (s.43B(1)(d) ERA) F: “that information tending to show any matter falling within … paragraphs (b) or (d) has been, is being or is likely to be deliberately concealed” (s.43B(1)(f) ERA)? (c) Did the Claimant reasonably believe that it was made in the public interest? Page 57 of 67 (d) Were any disclosures to R2 made to the Claimant’s employer within the meaning of s43C ERA?

[2]The parties’ positions are as follows: 2.1. R1’s position is that:(a) It is accepted that, to the extent that they relate to information tending to show that the health and safety of any individual has been, is being or is likely to be endangered (D), disclosures (i), (ii), (iii), (iv), (v), (vi), (vii), (viii) and (ix) were protected disclosures made to R1;

(b) To the extent that the alleged disclosures relate to information tending to show that matters are being or are likely to be deliberately concealed (F) (and to the extent that this matters in view of R1’s admission in (a) above), R1 denies that any belief by held by the Claimant that any information disclosed tended to show such concealment was reasonable;

(c) In respect of alleged disclosures (x), (xi), (xii), (xiii), (xiv) and (xv), any such disclosures were not made to R1 and R1 makes no admissions in respect of them. 2.2. C’s position is that all of the disclosures were protected: (a) all of the disclosures (i) to (xv) relate to information tending to show that the health and safety of any individual has been, is being or is likely to be endangered; (b) disclosures (iv), (v), (vi), (vii), (x), (xi), (xii), (xiii), (xiv) and (xv) relate to information tending to show that matters are being or are likely to be deliberately concealed. Detriments Alleged detriments by R1

[3]Did R1 do any of the following and thereby subject the Claimant to a detriment: 3.1. Publish, fail to remove from its website and/or circulate to a Member of Parliament false and defamatory statements. The Claimant relies on the following: Page 58 of 67(a) In respect of the without prejudice discussions: (i) ‘he claims that the Trust threatened him with the prospect of paying our legal costs . . . All of this is simply untrue’; (ii) ‘we did not threaten Dr Day with legal costs to pressure him to drop his claim’; (iii) ‘[o]n the issue of costs, we had decided not to pursue Dr Day for legal fees before he withdrew his case’;

(b) In respect of the without prejudice discussions: ‘Dr Day’s legal representatives indicated that it would be helpful to them for the Trust: To state what our position would be if the Tribunal were to dismiss Dr Day’s claims and make findings that he had not been truthful in his evidence. The Trust’s legal representatives confirmed that if the Tribunal were to dismiss Dr Day’s claims and make findings that his evidence was untruthful, then there would be an issue as to costs. This reflects that we are an NHS body responsible for public funds’;

(c) In respect of the Claimant’s whistleblowing case: ‘The external investigation found it had been appropriate for Dr Day to raise his concerns and that the Trust had responded in the right way’;

(d) In respect of the Claimant’s whistleblowing case: ‘Some of the 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… 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’; 3.2. Deliberately fail to respond to the Right Hon. Norman Lamb’s request on 28 January 2019 to either justify or remove the public statements published on the Trust’s website. 3.3. Deliberately fail to remove and / or update their public statements once contacted with concerns about the statements from the Care Quality Commission and or Sir Robert Francis QC. 3.4. On 4 December 2018, the First Respondent's Chief Executive, Mr Travis wrote 18 letters to local MPs and local public officials enclosing the 23 October 2018 and 4 December 2018 public statements about the Claimant's case. This material, that was purportedly to fully brief those MPs and public officials, Page 59 of 67 contained untrue and detrimental material (as particularised in paras. 33 and 36 of the AGOC).

[4]If so, were they detriments in the employment field such that they are complaints over which the employment Tribunal has jurisdiction or in respect of which the Claimant can make complaint under the ERA 1996?

[5]If so, did R1 subject the Claimant to such detriment(s) on the ground that he had made any of the protected disclosures set out above?

[6]Further, can the Claimant’s complaints about statements made by R1 about the without prejudice communications be fairly determined by the employment Tribunal while he continues to refuse to waive privilege in respect of the advice that here received at the time. Page 60 of 67 APPENDIX 2 AGREED CHRONOLOGY DATE EVENT [with relevant Bundle Pages] 29.08.13 PD(i) - C’s phone call and email to Dr Roberts [1396-1397] PD (viii) – statement from C to Dr Brooke 29.08.13 email from C to Dr Brooke 30.08.13 02.09.13 PD (ix) – C’s email to Dr Brooke 03.09.13 PD

(ii) – C’s email to Dr Harding [626-627] 07.11.13 SI 596 [SB 30-58] 05.12.13 SI 656 [SB 59-84] 10.01.14 PD

(iii) – C’s phone call and email to Joanne Jarrett [SB 87] 14.01.14 PDs

(iv) and

(v) - C’s phone call and email(s) to Joanne Jarrett 21.01.14 PD

(vi) – statement from C to Dr Harding 29.04.14 PD

(vii) – C’s email to Dr Harding and Dr Ward 03.06.14 PD (x) – statements from C to ARCP panel (including Dr Harrison and Dr Brooke) 05.06.14 PD (xi) – email from C to Dr Lacy Page 61 of 67 06.06.14 PD (xii) – statement from C to Dr Lacy 12.06.14 PD (xiii) – letter to Dr Lacy 13.08.14 PD (xiv) – statement from C to Gary Waltham 15.08.14 C’s Fixed Term Contract at the First Respondent ends. 10.09.14 BMA email with reference to PIDA Claims [referred to at SB 275, para 123] 10.09.14 Dr Frankel deleted C’s national training number 02.09.14 Meeting with Dr Frankel [SB 92-128] PD (xv) – statements from C to Dr Frankel and Gary Waltham 18.09.14 Roddis Investigation meeting with C and BMA Representative [xx] 15.10.14 Conversation of Concern Visit [634-636, 637-650] 17.10.14 Roddis Investigation meeting Joanne Jarrett [SB 129-143] 27.10.14 C presents first claim against Respondents (2302023/14) [1-12] Dec 14 Plummer Report [SB 154-175] 03.12.14 Roddis investigator informed of SI 656 [SB 151] 30.01.15 C sent Roddis reports [651-654, 655-714, 715-758] 10.04.15 Claimant presents second claim against Respondents (2301446/15) [60-71] 16.04.15 Tribunal determines preliminary issue in favour of Second Respondent on worker status, striking out Claimant’s claim against it 09.02.17 R2 threatened C with a costs application in relation to his appeal to the EAT [SB 186-187] 19.02.16 R1 statement to Evening Standard [759] 08.02.17 Peer Review Report [770-830] 05.05.17 Judgment handed down by the Court of Appeal in Day v Lewisham & Greenwich NHS Trust & HEE

[2017] EWCA Civ 329

[2017] ICR 917

overturning strike out against Second Respondent 28.06.17 R1 statement to HSJ [839] 21.07.17 R1 statement to Martyn Halle [845] Page 62 of 67 14.02.18 R2 disclosed LDA dated 1 April 2012 between R1 and R2’s predecessor organisations 20.02.18 Peer Review Report Revisit [872-906] May 18 R2 conceded worker status point just prior to preliminary hearing and paid £55,000 towards C’s costs 23.05.18 C and Norman Lamb met Jeremy Hunt 01.10.18 Commencement of full merits hearing, listed for 4 weeks During the hearing, R confirmed its position regarding PDs. All accepted bar 2.1.vi of the agreed list of issues for this claim. That was accepted during the current proceedings. 05.10.18 12:59 – Email from Chris Milsom to Ben Cooper [943] 13:10 and subsequent email exchange [945-946] 05.10.18 Phone call between Chris Milsom and Ben Cooper [947, 948] 05.10.18 Email Ben Cooper to R1’s solicitors [949] 13:38 05.10.18 Email to Tim Johnson from Chris Milsom [938] 13:42 05.10.18 Text from Chris Milsom to Ben Cooper [952] 13:48 05.10.18 Email Ben Cooper to R1’s solicitors [951] 13:58 05.10.18 Text Ben Cooper to Chris Milsom [952-953] and 16:14 subsequent exchange [954] 05.10.18 Email Ben Cooper to R1’s solicitors [957] 16:18 05.10.18 Discussion between Angus Moon and Ben Cooper [960-961, 962] 05.08.18 Phone call between Chris Milsom and Angus Moon 06.10.18 Angus Moon email agreeing that Chris Milsom can speak to C [968] 07.10.18 Conference call with C and his lawyers [971-973] 07- (according to Chris Milsom – denied by Ben Cooper) counsel for R1 and counsel for R2 spoke to him about a two tier approach in relation to costs [1123] 11.10.18 11.10.18 End of Claimant’s cross examination 11.10.18 Conference call with C and his lawyers [974-979] 11.10.18 Email from Chris Milsom to Respondents’ barristers [980] 12.10.18 Settlement negotiation between the parties in Croydon 12.10.18 Email from Janet Lynch to R1’s Board [985-986] 19:09 14.10.18 R1 Board Meeting 18:30 14.10.18 Text Ben Cooper to Chris Milsom [955] 19:17 15.10.18 Hearing ends in 'drop hands’ settlement and agreed position statement [990- 996] 15.10.18 HEE website statement [182-184] 16.10.18 BMJ article [1011-1012] 18.10.18 Email from Martyn Halle to David Cocke re Mail on Sunday article [1025] 19.10.18 Email from David Cocke to Martyn Halle re statement for Mail on Sunday [1028] 24.10.18 R1 website statement [169-172] Alleged Detriments

4.1 (c) and (d) 09:59 30.10.18 R1 Board Briefing [1052-1053] 05.11.18 Email from Tommy Greene to David Cocke [1058-1061] 12.11.18 Letter from Ben Travis to Norman Lamb [1062-1063] 16.11.18 Email from Martyn Halle to David Cocke and response [1094-1095] 20.11.18 HSJ article [1111-1114] 28.11.18 ET Judgment dismissing claims upon withdrawal sent to parties [132] 30.11.18 Chris Milsom account to C by email [1123] 02.12.18 Daily Telegraph article [1141-1142] 03.12.18 R2’s internal comment on R1’s public statement [1146] 04.12.18 R1 additional statement on website [173-175] Alleged detriments 4.1 (a) (i), (ii), (iii) 04.12.18 Mr Travis wrote to 18 MPs and public officials [1179-1182, 1183] Alleged detriment 4.4 R1 briefed the HSJ – R1 says deleted [SB 241] 11.12.18 C makes an application to the tribunal to set aside the settlement [133-151] 19.12.18 Briefing from Alex Wallace at R1 [1235, 1236-1241]] 20.12.18 Report into bullying and harassment at R1 (extracts) [1243, 851-871] 21.12.18 HSJ article about bullying and harassment report [1250-1253] 21.12.18 Letter from R1’s solicitors to Ben Travis and Janet Lynch [1283] 22.12.18 Letter from R1’s solicitors to Ben Travis and Janet Lynch [1284-1285] 31.01.19 Days A and B: C requests and receives an ACAS conciliation certificate [363] 03.01.19 R1 sends intended statement to C (ultimately not issued on website) [176- 177] 02.01.19 C responds to R1 [1296] 08.01.19 Meeting Norman Lamb, Dr Frankel and C 10.01.19 R1 website statement [178-181] Alleged detriment 4.1 (b) 09:35 14.01.19 Meeting Norman Lamb, Ben Travis, C, Melanie Day 23.01.19 C’s letter to Norman Lamb following 14.01.19 meeting [1386-1397] 28.01.19 Norman Lamb requested R1 to either justify or remove its public statements [1402- 1403] alleged failure to respond is alleged detriment

4.2 07.02.19 Letter from Ben Travis to Norman Lamb [1404] 18.02.19 Letter from Norman Lamb to Ben Travis [1413] 18.02.19 Tribunal decision sent to the parties rejecting C’s application to set aside [185-186] 26.02.19 C writes to the

[1]Following the judgment dated 15 November 2022, the Claimant made an application for costs on 13 December 2022. The Respondent responded on 9 January 2023 and the Claimant replied to this on 28 February 2023. It was agreed that the application would be dealt with on the papers without the need for a hearing. The Tribunal met on 6 March 2023 to consider the application and response to it.

The Law

[2]Rule 76 Employment Tribunals Rules of Procedure 2013. When a costs order or a preparation time order may or shall be made(1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that— a) a party (or that party's representative) has acted vexatiously, abusively, disruptively, or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or . . .

(2) A Tribunal may also make such an order where a party has been in breach of any order or practice direction or where a hearing has been postponed or adjourned on the application of a party.

[3]The Tribunal had before it the following case law:a. Yerrakalva v Barnsley Metropolitan Borough Council and another

[2012] ICR 420

b. Haydar V Pennine Acute NHS Trust

UKEAT/0141/17/BA

c. Power v Panasonic (UK) Limited

UKEAT/0439/04/RN

d. Kotecha v Insurety Plc T/A Capital Health Care

UKEAT/0461/07/LA

[4]The following case law was referred to in the Respondent’s submissions:a. Raggett v John Lewis Plc

[2012] IRLR 906

b. Hendricks v Commissioner of Police of the Metropolis

[2003] ICR 530

c. Frewer v Google UK Ltd and others

[2022] IRLR 472

[5]The basis for the Claimant’s application is as follows “The Claimant contends that the Respondent’s conduct in relation to disclosure leading up to and during the final merits hearing between 20 June – 8 July 2022 (not sitting on 24 June, 5 and 6 July); 12 July 2022, 14 July 20221 was unreasonable, and further or alternatively, was in breach of the Tribunal’s orders. This conduct resulted in an increase to the Claimant’s costs, as set out further below.” The relevant part of the judgment is paragraphs 50-56.

[6]The Tribunal has a discretion as to whether to award costs. Costs are the exception in this jurisdiction and not the norm. The Respondent submitted that the Tribunal should take account of the case as a whole and the conduct of the Claimant was also of relevance relying on Yerrakalva.

[7]There are three stages in the process of deciding whether to exercise the discretion to award costs.

[8]Step 1: the Tribunal should assess whether it considers that the Respondent has acted vexatiously, abusively, disruptively, or otherwise unreasonably in the way that the proceedings (or part) have been conducted (Rule 76(1)(a)); or that there has been a breach of an order or Practice Direction (Rule 76(2).

[9]Step 2 relates to the means of the paying party. Tribunals are not obliged by Rule 84 to take account of means, but may do so.

[10]Step 3: if the Tribunal considers that a costs order may be appropriate, the Tribunal should consider the amount of any costs order under Rule 78.

[11]The Tribunal considered the steps in turn. The Tribunal concluded that the threshold test at stage one was met. The judgment gives the Tribunal’s view on the Respondent’s disclosure. The Tribunal did not sit for two days whilst further disclosure was carried out. Submissions had then to be given on an extra day the week after evidence concluded. Taken at face value, the Tribunal finds that the Respondent acted unreasonably in failing to ensure that disclosure was adequately undertaken and that this resulted in the Tribunal sitting for extra days and the parties being required to attend on days that had been expected to be for the Tribunal’s use.

[12]Having decided this, the Tribunal went on to consider stage 3 (stage 2 is not relevant in this case). Haydar at paragraph 37 says: “Once the Respondent had satisfied the Tribunal that there was jurisdiction to award costs, it was for the Tribunal to satisfy itself, in light of its conclusion that unreasonable conduct of some kind had been established, whether a costs order was appropriate in all the circumstances having regard to any factors relevant to the exercise of that discretion.”

[13]Yerraklava held at paragraph 41: “The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the Claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had.”

[14]The Respondent summarised its response in its submissions as follows: “The Trust opposes the Claimant’s application. For the reasons explained below it would be manifestly unfair and unjust (and hence contrary to the overriding objective set out in Rule 2 of the 2013 Rules of Procedure) for any costs order to be made in the Claimant’s favour. The Trust’s alleged unreasonable conduct has been exaggerated by the Claimant and any additional costs incurred as a consequence have been dwarfed by the costs occasioned by the Claimant’s own unreasonable conduct. The ET is therefore invited to dismiss the application.”

[15]The Respondent has put in its submissions various comments the Claimant made on social media following the judgment. As a starting point, the Tribunal did not consider these and instead focussed its attention to the case itself and resulting judgment.

[16]Amongst other matters, the Respondent relies on the length of the Claimant’s first witness statement and his production of another two statements. It relies on the list of issues and the evidence adduced by the Claimant which went far beyond the issues that the Tribunal had to deal with and went back to the issues in the 2014 claim which was withdrawn. It cited the witnesses the Claimant had produced and the lack of relevance of those witnesses’ evidence to the issues. The Respondent also submitted that the way in which the Claimant gave his evidence was unreasonable in that he would not answer straightforward questions. It also referred to the Claimant’s own disclosure errors in particular the late disclosure of the letter before action sent to Mr Milsom.

[17]The Tribunal has already made findings in its judgment about these matters. The Tribunal referred to Hendricks: “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.” As found in the judgment, the Claimant was wanting to present evidence about the disclosures themselves. This was not relevant to what the Tribunal had to determine. The case the Tribunal was to determine was solely related to any detriments that may have been made in the public statement made after the Claimant had withdrawn his 2014 case and whether there was a causal connection between any detriment found and the public interest disclosure the Claimant made and which the Respondent by and large accepted as being protected.

[18]The seriousness of the disclosures was not relevant. Most of the disclosures were admitted to be protected disclosures, and those that had not been conceded as such would not make any difference to whether there were detriments in the public statements. The Claimant’s evidence was exceptionally long. It did not confine itself to the issues. The Tribunal gave direction that not all parts of the Claimant’s witness evidence was to be crossexamined on, and that the Respondent should concentrate on those matters that had been agreed in the list of issues.

[19]Inevitably this increased the costs for the Respondent and for the Tribunal which are both publicly funded bodies. The Tribunal has no doubt that if the Claimant had applied his mind to the actual issues in this case and had not sought to re-litigate his 2014 case, the hearing would have been significantly shorter and therefore less costly to the Respondent and the Tribunal. The Tribunal notes that the Claimant has presented another claim. It is hoped that in any future litigation the Claimant confines his evidence to the issues which the Tribunal is to decide.

[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.