Protected disclosures (commonly referred to as “whistleblowing”) carry significant legal and reputational risks for employers when mishandled. The recent Employment Tribunal judgment in Dr Susan Gilby vs (1) Countess of Chester Hospital NHS Foundation Trust and (2) Ian Haythornthwaite offers employers critical lessons on how not to respond when an employee raises concerns. This non-exhaustive guide outlines best practices for employers when responding to protected disclosures, cross-referring to key failings identified in Dr Gilby’s case, to help navigate this complex area.
1. Understand what constitutes a protected disclosure
A protected disclosure is not simply an employee “complaining”. Under the Employment Rights Act 1996, a protected disclosure is any disclosure of information which, in the reasonable belief of the person making the disclosure, is made in the public interest and tends to show wrongdoing such as a criminal offence, a breach of legal obligations, a miscarriage of justice, health and safety risks and environmental damage, for example.
The Tribunal found that our client, Dr Gilby, made numerous protected disclosures between April and December 2022 regarding Mr Haythornthwaite’s behaviour which affected the health and safety of employees and was a breach of a legal obligation. The Tribunal confirmed these qualified as protected disclosures as they were made in the public interest.
Key takeaway: Employers must train those in senior positions to identify disclosures early, even if framed as informal complaints.
2. Ensure the protected disclosure is taken seriously
Failure to engage seriously with concerns risks legal and financial liability.
In Dr Gilby’s case, the Trust sought to sideline and eventually remove Dr Gilby after she raised concerns (by way of a covert operation named “Project Countess”). Emails were deleted and investigations were delayed and mishandled.
Key takeaway: Employers must acknowledge disclosures promptly; ensure they are investigated objectively and keep a written record of all steps taken.
3. Avoid any detrimental treatment
Employers cannot subject whistleblowers to detriments (for example, exclusion and/or disciplinary action) for making protected disclosures.
Dr Gilby was subjected to aggressive attacks, she faced exclusion from her work without due process having been followed (and after a series of sham allegations were constructed to justify that exclusion and her exit from the Trust), Dr Gilby’s professional reputation was jeopardised and she was restricted access to her emails and isolated from colleagues which impeded her ability to defend the misconduct allegations against her. The Tribunal found these actions constituted unlawful detriments, emphasising that even “neutral” acts (which the Trust indicated Dr Gilby’s suspension was) can be detrimental if causally linked to the disclosure.
Key takeaway: Employers must shield whistleblowers from retaliation, regularly monitor treatment towards whistleblowers after protected disclosures are made and ensure they take action against any colleague who victimises whistleblowers.
4. Preserve evidence
As mentioned in my previous article ‘Making Protected Disclosures: A Guide for Whistleblowers’, evidence is the cornerstone of any protected disclosure. Deletion of relevant documents can undermine the credibility of an organisation.
In Dr Gilby’s case, the Trust’s failure to retain key documents, including appraisals, emails and WhatsApp messages was ruled to be “unreasonable conduct”. Adverse inferences were drawn because of the deletions and destruction of evidence.
Key takeaway: Organisations must have a clear policy on document retention and deletion, and this policy must be strictly enforced. Upon receiving a protected disclosure, employers should ensure that destruction or alteration of any documents is immediately suspended. Employers should issue clear instructions across the organisation to preserve any relevant documents including (but not limited to) emails, texts, WhatsApp messages (or any other messaging apps) and handwritten notes.
5. Be transparent with the whistleblower
Transparency is paramount, and any perception of bias or pre-judgment can undermine the integrity of the process.
Dr Gilby was not told clearly why she was suspended, what allegations were under investigation or how her concerns were being handled.
Key takeaway: Employers should communicate openly with the employee (to the extent possible without prejudicing investigations), provide regular updates and if interim measures are necessary (such as suspension which should only be used as a last resort), explain the reasons and review their necessity regularly.
6. Respect the implied term of trust and confidence
There is an implied term in every employment contract to the effect that the employer will not (without reasonable and proper cause) conduct itself in a manner likely to destroy, or seriously damage the relationship of trust and confidence between employer and employee.
In Dr Gilby’s case, the Tribunal found that Dr Gilby’s exclusion was unjustified and gave rise to a breach of the implied term of trust and confidence. The decision to exclude Dr Gilby was the culmination of a series of actions which eroded and eventually destroyed her trust and confidence in the Trust.
Key takeaway: Employers must treat their employees fairly and consistently; they should absolutely avoid ‘plotting’ or pre-judging outcomes, and they must promote a culture of openness and accountability within the organisation.
7. Investigate
Investigations must be independent and transparent.
In Dr Gilby’s case, the Trust also appointed an investigator, Mr Gill, who had previously engaged in “behind the scenes machinations” to remove her and destroy her professional standing and career.
Key takeaway: Employers should appoint independent investigators, avoid conflicts of interest and where senior figures are implicated, consider the use of external third-party investigators.
Conclusion
Dr Gilby’s case is a cautionary tale for employers – mishandling protected disclosures risks not just reputational damage but significant legal and financial liability. Those in senior positions must lead by example in creating a supportive environment where concerns are treated seriously, fairly, and lawfully. Robust systems, clear communications, prompt action and adherence to proper process are not optional – they are essential.
By embedding these practices, employers not only reduce risk but also strengthen trust within their organisation.
If you believe a whistleblower has made a protected disclosure and you need assistance on how to handle the process that follows, please feel free to contact me at robyn.barron@arch.law.
Arch Law’s press release on Dr Gilby’s case can be found here: Countess of Chester NHS Trust agrees £1.4m settlement with former Chief Executive following tribunal ruling
