Mr G Powell of Counsel For the v Respondent — 2020

Dr Esha Sarkar, a specialist registrar trainee in immunology, submitted a Datix report on 14 August 2017 after a graded drug challenge involving patient JH led to anaphylaxis. The tribunal held that the Datix was a protected public interest disclosure because it disclosed information tending to show that the health or safety of an individual had been endangered, and it was made to the respondent through its incident reporting system.

The tribunal found that the respondent's consultants had encouraged the Datix as part of normal patient-safety and learning processes, not as a basis for retaliation. It also found that the claimant's difficulties with team working, communication, reflection, documentation and response to feedback pre-dated the Datix and had been recorded at earlier training centres. On the facts found, Dr Whyte did not instruct her to modify the Datix, and the later feedback, multiple consultant reports, educational supervision notes and grievance process were based on those existing concerns and on the claimant's conduct during and after the JH incident.

Applying the whistleblowing detriment provisions, the tribunal rejected each of the seven chosen detriments. It held that the grievance process and the eventual removal from training were not done on the ground of the protected disclosure, but followed independent training and supervision decisions, including the HEE ARCP Outcome 4 and the loss of the only educational supervisor in a small department. The tribunal also considered time limits and concluded that the earlier complaints were out of time in any event, while the later complaints within time still failed on the merits. The claimant's detriment claims under section 47B ERA 1996 were therefore dismissed in full, and no award was made.