Mr Tristan Reuser, surgeon, successfully defends an EAT appeal by University Hospitals Birmingham NHS Foundation Trust

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Petition to replace weak UK whistleblowing law to protect whistleblowers and the public

By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist, 2 May 2020

Some good news in the midst of the terrible devastation of the coronavirus emergency.

Mr Tristan Reuser was found by an Employment Tribunal (ET) to have been unfairly dismissed by his employer University Hospitals Birmingham NHS Foundation Trust, with the added twist that his Medical Director was found to have misled the General Medical Council by referring him without disclosing that he had made public interest disclosures. This is against revised GMC rules, brought in after the Freedom To Speak Up Review was published in 2015, to deter the vexatious referral of whistleblowers as a grave form of reprisal. The ET was fulsome in it criticism of senior trust managers.

This is the ET judgment:

Employment Tribunal in the matter of Mr Tristan Reuser v University Hospitals Birmingham NHS Foundation Trust Case number 1303554/2017

I exchanged correspondence with the GMC in relation to general issues arising from Mr Reuser’s case:

Mr Tristan Reuser surgeon & GMC. Update on GMC, whistleblowing and implementation of the Hooper recommendations

The trust followed a most unfortunate path of digging itself in deeper by punishing Mr Reuser with an appeal, echoing the disgraceful repeated appeals by Croydon Health Services NHS Trust in Dr Kevin Beatt’s case which were all to no avail.

Dr Kevin Beatt NHS whistleblower & the negligent GMC

Court of Appeal Judgment Beatt v Croydon Health Services NHS Trust [2017] EWCA Civ 401

However, the Employment Appeal Tribunal (EAT) has comprehensively rejected all grounds of the Trust’s appeal against the ET finding in Mr Reuser’s favour, with an admonition from the judge that disliking criticism is not sufficient grounds of appeal:

This is the full EAT judgment:

Employment Appeal Tribunal in the matter of Mr Tristan Reuser v University Hospitals Birmingham NHS Foundation Trust Appeal No. UKEAT/0020/19/BA

Moreover, the EAT has partially accepted a cross appeal by Mr Reuser’s team and remitted a matter to the original ET for further consideration. This relates to the reasons for his unfair dismissal, which he contends is the fact that he made public interest disclosures:

The EAT has remitted this matter to the original ET for reconsideration:

Thus, the trust not only wasted precious public money on a meritless appeal, but it has also possibly shot itself in the foot.

Related GMC and FPPR referrals on senior trust managers have been spun out by the GMC and CQC, but this appeal judgment takes away their excuses for prevaricating, unless of course the trust abuses the public purse with yet another appeal.

Whistleblowing in the coronavirus emergency

I should like to stress that the risks of litigation for whistleblowers are horrendous at the best of times, the process being protracted and highly traumatic. Even ‘wins’ are not real wins, and involve many personal losses for the whistleblower. It is a scandal that whistleblowers must shoulder this burden alone, when performing a public duty that benefits us all.

Ordinarily, whistleblowers are advised to use internal and official external channels of whistleblowing for a number of reasons, including maintaining “protected” legal status, weak though that is under UK law.

At present, it seems to me from all the signs that official channels for whistleblowing are worthless and very unsafe for both whistleblowers and for the public. We have seen national bodies repeatedly colluding with the UK government’s misleading claims about its handling of the coronavirus emergency, and suppression is in overdrive.

The safest route, both for whistleblowers and the public, as far as I can see at present is to make direct disclosures to the media on an unnamed basis. Choose your media outlet wisely, based on careful assessment of their professionalism and adherence to facts.

Under the law, the test which affords whistleblowers legally “protected” status when making direct disclosures to the media is stringent and requires elements of urgency, exceptional gravity and good reasons to distrust official channels.

To my mind, these are the conditions that we are seeing with regard to the coronavirus emergency.

The Public Interest Disclosure Act itself has this to say:

43G Disclosure in other cases.

(1)A qualifying disclosure is made in accordance with this section if—

(a)the worker makes the disclosure in good faith,

(b)he reasonably believes that the information disclosed, and any allegation contained in it, are substantially true,

(c)he does not make the disclosure for purposes of personal gain,

(d)any of the conditions in subsection (2) is met, and

(e)in all the circumstances of the case, it is reasonable for him to make the disclosure.

(2)The conditions referred to in subsection (1)(d) are—

(a)that, at the time he makes the disclosure, the worker reasonably believes that he will be subjected to a detriment by his employer if he makes a disclosure to his employer or in accordance with section 43F,

(b)that, in a case where no person is prescribed for the purposes of section 43F in relation to the relevant failure, the worker reasonably believes that it is likely that evidence relating to the relevant failure will be concealed or destroyed if he makes a disclosure to his employer, or

(c)that the worker has previously made a disclosure of substantially the same information—

(i)to his employer, or

(ii)in accordance with section 43F.

(3)In determining for the purposes of subsection (1)(e) whether it is reasonable for the worker to make the disclosure, regard shall be had, in particular, to—

(a)the identity of the person to whom the disclosure is made,

(b)the seriousness of the relevant failure,

(c)whether the relevant failure is continuing or is likely to occur in the future,

(d)whether the disclosure is made in breach of a duty of confidentiality owed by the employer to any other person,

(e)in a case falling within subsection (2)(c)(i) or (ii), any action which the employer or the person to whom the previous disclosure in accordance with section 43F was made has taken or might reasonably be expected to have taken as a result of the previous disclosure, and

(f)in a case falling within subsection (2)(c)(i), whether in making the disclosure to the employer the worker complied with any procedure whose use by him was authorised by the employer.

(4)For the purposes of this section a subsequent disclosure may be regarded as a disclosure of substantially the same information as that disclosed by a previous disclosure as mentioned in subsection (2)(c) even though the subsequent disclosure extends to information about action taken or not taken by any person as a result of the previous disclosure.

43H Disclosure of exceptionally serious failure.

(1)A qualifying disclosure is made in accordance with this section if—

(a)the worker makes the disclosure in good faith,

(b)he reasonably believes that the information disclosed, and any allegation contained in it, are substantially true,

(c)he does not make the disclosure for purposes of personal gain,

(d)the relevant failure is of an exceptionally serious nature, and

(e)in all the circumstances of the case, it is reasonable for him to make the disclosure.

(2)In determining for the purposes of subsection (1)(e) whether it is reasonable for the worker to make the disclosure, regard shall be had, in particular, to the identity of the person to whom the disclosure is made.

An additional option is to disclose to the media on a named basis but to ask for your anonymity to be maintained in reporting. There are understandable circumstances in which people might prefer this. But be aware that it introduces some risk of accidents, such as interception of the data about your identity. Equally, there is a precedent of a whistleblower being questioned under oath at ET about whether they were the source of a disclosure of privileged documents to a journalist (they were). But that is less of a consideration if you intend to stay under the radar and have no intention of any open legal dispute with your employer.

If the situation changes, the risk assessment may once again favour official channels, but I suspect that will be some time.

Beware any advice at present which points you in the direction of official channels of external reporting, such as to regulators and bodies such as NHS England, which are highly compromised and have a major conflict of interest in the UK coronavirus debacle. For example:

““When this is all over, the NHS England board should resign in their entirety.” So wrote one National Health Service (NHS) health worker last weekend. The scale of anger and frustration is unprecedented, and coronavirus disease 2019 (COVID-19) is the cause.”

From the Lancet Editor’s paper COVID-19 and the NHS—“a national scandal”

Avoid third parties on the whistleblowing scene who have vested interests, including financial motives, and who make repeated unsubstantiated or unattributable claims.

With judicious selection of trustworthy media, and pertaining to valuable disclosures that are truly of public interest, you can be self sufficient in your whistleblowing and can avoid introducing risk from unreliable actors.

If you do seek advice at present, seek it from a lawyer whom you have personally engaged and who has a duty of confidentiality to you. Lawyers instructed by unions are answerable to your union, despite protestations otherwise, and your best interest will not necessarily be the first consideration.

Stay safe.

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Petition: Replace weak UK whistleblowing law, and protect whistleblowers and the public