NHS Trust’s Conduct Under Scrutiny as Whistleblower Case Faces Appeal Outcome
A recent Employment Appeal Tribunal (EAT) ruling has reignited debate surrounding teh handling of a whistleblower case against an NHS trust, LGT. While upholding the original 2022 tribunal’s decision, the EAT acknowledged significant procedural concerns, notably regarding evidence disclosure and potential evidence destruction. This case highlights critical issues within NHS openness and the protection of individuals raising concerns.
The Core of the Dispute
The case centers on Dr. Day, who alleged defamation and detriment following public statements made by LGT. He claimed these statements were damaging to his professional reputation, stemming from his protected disclosures – essentially, whistleblowing activities. The initial 2022 tribunal cleared LGT of wrongdoing, but that decision is now facing intense scrutiny.
Key Findings & Concerns from the Appeal
Judge Clive Sheldon KC, presiding over the appeal, confirmed the 2022 tribunal’s reasoning was within its discretion and supported by the evidence.However, the EAT identified two errors in the original ruling:
Failure to Consider Detriment: Judge Anne Martin did not adequately assess whether LGT’s refusal to remove perhaps damaging public statements – even after concerns raised by the Care Quality Commission – constituted a detriment to Dr. Day.
Incorrect Application of Employment Rights Act: The initial ruling incorrectly persistent Dr. Day’s claim fell outside Section 47B of the Employment Rights Act,which safeguards workers from retaliation for whistleblowing.
Despite these errors, the EAT concluded they were “immaterial” to the overall outcome, stating the original tribunal correctly found Dr.Day’s disclosures didn’t significantly influence LGT’s actions.
Allegations of Evidence Tampering & Lack of Transparency
The appeal hearings brought to light serious allegations of misconduct by LGT. Dr. Day’s barrister, Andrew allen KC, presented evidence including:
Attempted Mass Deletion of Emails: A trust employee allegedly attempted to delete approximately 90,000 emails while the 2022 tribunal was in session.
“Incorrect” CEO Testimony: Trust CEO Ben Travis provided testimony deemed “incorrect” by Dr. Day’s legal team.
Withheld Board Meeting Records: Records of a crucial board meeting were withheld during a previous court hearing.
LGT’s barrister, Daniel Tatton Brown KC, minimized the significance of late evidence disclosures, claiming a former communications director, David Cocke, actually brought additional material to light – despite his attempts to delete emails. Notably, Cocke did not participate in cross-examination during the 2022 proceedings.
E-Discovery Questions Remain Unanswered
The handling of electronic evidence, or “e-discovery,” is a central point of contention. An e-discovery expert consulted by Computer Weekly questioned LGT’s claims regarding “permanent” evidence deletion. Crucially, neither the 2022 nor the 2025 appeal hearings included independent IT experts to verify the status of the targeted electronic documents. This lack of independent verification leaves critical questions unanswered.
Whistleblower Expresses Disappointment
Dr. Day voiced strong dissatisfaction with the EAT’s decision,stating judges “ignored” and “trivialized” the attempted destruction of evidence. He believes the case is fundamentally about misleading the public and Parliament regarding the NHS whistleblowing process, and its sudden settlement. He questions how such significant evidence destruction could be overlooked.
Implications & Broader concerns
This case raises serious concerns about transparency and accountability within the NHS. The allegations of evidence tampering, coupled with the EAT’s acknowledgement of errors in the original ruling, underscore the need for robust procedures to protect whistleblowers and ensure fair legal proceedings.
The lack of independent IT expertise in reviewing the e-discovery process is particularly troubling. It highlights a potential vulnerability in how digital evidence is handled in sensitive cases involving public bodies.
LGT has declined to provide further comment.
Key Takeaways:
The EAT upheld the original ruling but acknowledged errors in the initial tribunal’s reasoning. Serious allegations of evidence tampering and misleading statements have been made against LGT.
the case highlights the importance of robust e-discovery procedures and independent verification of digital evidence.
protecting whistleblowers and ensuring transparency within the NHS remain critical concerns.
Further Reading:
[Computer weekly: NHS trust accused of at best
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