Evidence that doesn’t see the light of day – The Future of Whistleblowing Cases

he whistleblowing case of Dr. Day has seen many twists and turns. It stems from protected disclosures he made over a period of 10 months from August 2013, more than 9 years ago. Dr. Day says that he suffered a series of detriments as a result of making disclosures, and on 27 October 2014 and 10 April 2015 he brought whistleblowing claims to the Employment Tribunal (ET) against Lewisham and Greenwich NHS Trust and Health Education England.

His case was heard in October 2018, after more than 3 years from his filing of the claim. The main reason for this delay was that Health Education England did not accept that he was their ‘worker’ for the purposes of the whistleblowing regulations. They conceded this point in May 2018.

His whistleblowing claims were settled between the parties after the end of Dr. Day’s evidence. Dr. Day argues that he settled his claims as a result of costs threats made by the two respondents. Following the settlement of his claims, Dr. Day says that Lewisham and Greenwich NHS Trust made certain public comments in relation to his claims and the alleged cost threats, which constituted detriments against him. He brought a whistleblowing claim to the ET. His claim was heard over 16 days in June and July 2022.

During the course of the litigation it became apparent that Lewisham and Greenwich NHS Trust had deleted a vast amount of e-mails that were relevant to this matter. During the hearing, the NHS Trust made a number of late disclosures which (Dr. Day’s representatives say) were relevant to a core part of his case, and which were available to the NHS Trust during the entirety of Dr. Day’s case. The late disclosure (his representatives say), casted “in doubt the integrity of the whole of the discovery and disclosure exercise by the [NHS Trust]”. As a result of these late disclosures, the NHS Trust was ordered by the ET to conduct a further disclosure exercise and to provide a witness statement discussing the mechanism and methodology used to conduct the original disclosure exercise. Dr. Day’s representatives also argue that the late disclosures cast doubt as to whether the deleted e-mails were deleted in the way that the NHS Trust suggests they were, and indeed whether they have been permanently deleted at all.

Consequences of late disclosure – The Present

The judgment in Dr. Day’s (second) whistleblowing case is reserved (meaning that the ET is deliberating and will hand down their decision in due course). His representatives have argued that the ET should draw inferences from the issues surrounding the disclosure in this matter – in other words that the NHS Trust did not preserve evidence and that it provided inadequate disclosure because such evidence and disclosure would harm its response. 

In law, a party which fails to preserve relevant evidence or provides inadequate disclosure can face a few consequences; it can be found to be in contempt of court (and liable to pay a fine), it may have inferences drawn against it (potentially leading to a liability finding against it in a case), and/or it may be ordered to pay wasted costs or aggravated damages in the litigation. All such consequences follow the event, and one may argue that they come “late in the day”. The matter has been heard, and the claimant has been deprived of their opportunity to properly present their case due to the disclosure issues. This is a substantial gap in the legal landscape.

The Office of the Whistleblower and ‘Information Notices’ – The Future

The All-Party Parliamentary Group for Whistleblowing was formed in July 2018, and has been tasked with identifying where the law fails to protect whistleblowers. The ‘disclosure gap’, discussed above, was one of the major issues identified by the APPG, which has vowed to plug such hole through changes to whistleblowing laws. 

To this end a Private Members’ Bill has been introduced, titled the Protection for Whistleblowing Bill, which provides for an Office of the Whistleblower to created which will have powers to investigate whistleblowing complaints, report wrongdoers and fine such wrongdoing. Among its powers it will be able to issue ‘Information Notices’ requiring any person to provide such information that the Office may require for the purposes of investigating a complaint. Failure to comply with such requirement may make the person liable to pay a considerable civil penalty. 

This mechanism firstly will take the burden off the claimant in seeking disclosure to support its whistleblowing complaint, and secondly will ensure that relevant disclosure is provided well in advance of any determinations, if the person/company wishes to avoid being liable to a hefty fine. It is the intention of the Bill to empower whistleblowers, and make their journey smoother to travel. ‘Information Notices’ are one small change that will make a big difference – in the case of Dr. Day, it could have made all the difference.

The Bill had its First Reading in the House of Lords on 13 June 2022. WhistleblowersUK has been instrumental in the drafting of the Bill, and is the APPG for Whistleblowing’s Secretariat. For more information of our work, please visit our website here: https://www.wbuk.org/.

- Alexandra Sidossis, WhistleblowersUK Legal Panel Member

If you would like to know more about the case of Dr Day we would recommend this article by David Henecke