The 2016 Employment Tribunal (ET) vs Alder Hey

NHS Trusts can’t go after journalists for their “sources”. So they go after likely whistleblowers; pushing them to seek protection from the ET; then cross-examining to force whistleblowers to “out” themselves or others as sources.

In 2016, I sought the Employment Tribunal’s (ET) protection against Alder Hey (AH or “the Trust”).

In 2013, I’d reported unaddressed safety concerns by letter copied to the CQC (Care Quality Commission: the independent regulator of health and adult social care in England) and two Parliamentary Committees: the Health Select Committee (HSC) and the Public Accounts Committee (PAC).

Alder Hey referred me to the GMC (General Medical Council: The GMC aims to protect patient safety and improve medical education and practice across the UK). The hospital responded to the CQC, HSC and PAC that all my concerns had been repeatedly investigated and were found each time to be “completely without foundation”.

The ET decided that AH’s decision to refer me to the GMC had nothing to do with my letter, because it believed Alder Hey’s claims that it knew nothing of my letter in advance. But a University email shows Alder Hey knew to ask for a copy in advance. The copy arrived at Alder Hey the day after it sent its GMC referral. The ET failed also to determine why several other non-whistleblowing, white surgeons were not referred to the GMC over more serious matters, like patient harm.

The ET decided that Alder Hey’s claims (that my concerns were found on each investigation to be “completely without foundation”) were an “overstatement”. But it held that Alder Hey’s false claims could not be a detriment to me, and were lawful given the need for the Trust to protect its reputation. Instead, the ET criticised my credibility for going to Private Eye and not outing myself when hunted by the Trust (even though I explained my well-founded fear of reprisal).

Section 43G of the Public Interest Disclosure Act is meant to provide whistleblowers with protection for taking unaddressed concerns to the media. But in my case, the ET refused me protection for my press disclosures about the Ahmed case et al. It argued my concerns had all been put right after an investigation by the Royal College of Surgeons (RCS). But the ET only allowed itself to read the unredacted half of the RCS report; and even that half made clear that the RCS had not addressed all concerns, including about the Ahmed case.

Far from the full picture

The ET also heard Alder Hey’s evidence on oath and read its internal documents, proving that several of my concerns hadn’t been dealt with. The Trust CEO even admitted on oath that she’s never investigated those behind the Ahmed scandal. But, the ET failed to record any of this in its decision.

The ET also held that a Trust employee was setting the “record straight”, when in fact he had altered evidence against me to the GMC (I have both his versions). When caught, he then gave the Trust and the ET multiple conflicting accounts for his alterations. Alder Hey refused to disclose the Word version of his evidence to allow us to see with whom he’d altered it and when. Again, the ET failed to comment on this.

The ET judge refused to correct any of the above or a string of factual errors, that the EAT (Employment Appeal Tribunal) has also been content to leave untouched. I have however managed to get the EAT to reconsider the legal decisions, acting at first on my own (as a litigant-in-person), and at the last-minute with a crowdfunded lawyer.

The EAT decision will help clarify a number of points, including the extent to which one can rely on Section 43G legal protection to escalate concerns to the media as a last resort.