Dr C Connolly v Health Education England — 2019

The claimant, Dr C Connolly, brought a whistleblowing detriment claim against Health Education England arising from her paediatric training. The tribunal accepted, on the respondent's concession, that the 19 July 2017 email contained a protected disclosure and that the claimant was a worker for the purposes of s.43K(1) ERA 1996. The case concerned a series of alleged detriments said to follow that disclosure, including removal from night shifts, critical feedback from supervisors, the handling of emails and meetings, and the ARCP process that ended with an outcome 4 and later an unsuccessful appeal.

On the removal from nights in October 2017, the tribunal found that the decision was made by the consultant body because of patient safety and training concerns, and also in response to the claimant's own anxiety. It held that the removal was supported by documentary evidence, lasted only a short period, and was presented as a supportive measure rather than a detriment. The tribunal also rejected the allegation that Dr Petropoulos and Dr Kingdon unfairly criticised the claimant when they explained that decision, finding the comments to be critical but justified and part of a training context.

The tribunal similarly rejected the other alleged detriments. It found that Dr Goh's decision not to produce the underlying emails did not put the claimant at a disadvantage because the substance of the concerns was put to her and she had an opportunity to respond. It held that the criticisms repeated in March 2018, November 2018, January 2019 and February 2019 were not unfair, but were consistent with earlier feedback, consultant reports and MSF evidence that raised recurring concerns about time management, situational awareness, prioritisation, over-investigation, confidence and leadership. The tribunal noted that the claimant had also received extensive support from Dr Goh, Dr Petropoulos and Dr Kingdon throughout the period.

The tribunal found no detriment in HEE not separately investigating the claimant's concerns about unsafe practice and undermining. It accepted that she had been told how to raise those concerns within the Trust, that the matters were within the Trust's remit rather than HEE's, and that she did not pursue the internal routes suggested. It also rejected the complaints concerning the 2019 ARCP outcome 4 and appeal, finding no inaccuracy in the information said to have been passed on about her training time and no basis for saying the outcome process itself was a detriment.

Because it found no detriments, the tribunal did not need to decide causation, time limits or the agency issue. It nevertheless went on to say that, even if some matters had amounted to detriments, it was not satisfied that they were materially caused by the protected disclosure. It found no prima facie case that the disclosure played more than a trivial part in the later treatment, and dismissed the claim in full. No monetary award was made.