The EAT (Employment Appeal Tribunal) really restricts scrutiny to points of law. So, the ET (Employment Tribunal) retains tremendous power. It can render opinion as fact, and vice versa, leaving whistleblowers with few options. The hearing is not recorded, so it’s a struggle if the ET misses key evidence.
Initially I had to represent myself to appeal the 2016 ET decision. I managed to get six grounds of appeal to a full hearing in the EAT. This case was heard in April 2018, and the decision is still awaited.
Here’s my interview, going in on the first day; then some commentary from Dr Bob Gill and Dr Chris Day:
Generous crowd-funding from family, friends, former patients’ parents and well-wishers meant I was able to secure a lawyer to represent me at the last-minute. It was a godsend, but quite a challenge for him. He was new to the case, whereas the opposing QC has been living it for years.
Most appeals last less than a day, but this went for two and a half days due to the factual content and the dense legal arguments. I’ll go into each ground of the appeal, once we have a judgment. For now, it’s important to recognise two key questions of general interest that arise in this case.
- Is it lawful for a Trust to protect its reputation by claiming a whistleblower’s concerns have been fully investigated and found each time to be “completely without foundation”, when in fact several serious concerns were upheld or uninvestigated?
- Is the ET right to refuse Section 43G protection for going to the media, on the basis that (a) these concerns had been raised before and (b) things had all been put right when Section 43G protection requires (a) and the ET had no basis on which to conclude (b) – and in fact had been presented with evidence to the contrary?