And speaking of things that can get dug up brings me to the somewhat complex case of Day v Lewisham & Greenwich NHS Trust, and the long, long reach of whistleblowing actions and procedures.

During his employment as a junior doctor with Lewisham and Greenwich NHS Trust from 2013 to 2014, Dr Day made several protected disclosures regarding patient safety at the hospital.

Later, Dr Day brought claims of unfair dismissal and whistleblowing detriment against the Trust and Health Education England (HEE), which were heard and settled in 2018 after Dr Day gave evidence. No compensation was awarded and a joint statement acknowledged that the Trust and HEE had acted in good faith and without whistleblowing detriment.

In 2019, Dr Day initiated further proceedings alleging that defamatory public statements published by the Trust, alongside letters to MPs and public officials around the time of the 2018 proceedings, amounted to post-employment whistleblowing detriment and argued these were motivated by his protected disclosures.

The Employment Tribunal rejected Dr Day’s claim and found most of the statements were not detrimental and those that were did not arise because of whistleblowing. The ET held that since these events took place after Dr Day’s employment ended and concerned his role as a litigant and not as a former employee, they fell outside the scope of section 47B and were not “in the employment field” for the purposes of his claims.

Dr Day appealed the decision to the EAT.

The EAT disagreed, ruling that detriments closely connected to the employment relationship and protected disclosures are covered by section 47B, even post-termination. The detriments related to the same disclosures made during employment and the previous tribunal proceedings and therefore fell within statutory protection. The EAT also found the ET failed to consider whether the Trust’s refusal to remove public statements after receiving concerns from the Care Quality Commission constituted a detriment.

Despite the errors by the ET, the EAT nevertheless dismissed the appeal on the facts and concluded that the errors by the ET were immaterial to the outcome of the case. The EAT stated that the Trust’s actions were motivated by reputational concerns and media coverage rather than Dr Day’s disclosures.

The EAT acknowledged that not every post-employment detriment claim will qualify under section 47B but affirmed the potential for such protection where a close connection exists.

This decision highlights that whistleblowing protection under section 47B can extend beyond employment termination to include post-employment detriments such as references or public statements. Employers should therefore carefully manage communications about former employees who have made protected disclosures to help protect themselves against potential claims.