Dr Chris Day withdrew employment tribunal claims (for detriment to his career as a result of whistleblowing) against Lewisham and Greenwich NHS Trust and Health Education England (HEE) in October 2018. As outlined in the statement we issued after the Tribunal, his claims related to staffing on a night shift at Queen Elizabeth Hospital (QEH) in January 2014. It is very sad that legal proceedings were required, as we have always been clear that we did not treat Dr Day unfairly on the grounds of whistleblowing; we investigated his concerns thoroughly and appropriately and he completed his contract with the Trust, as planned. Indeed, Dr Day accepted that the employment tribunal was likely to find that the claims against the Trust would have been dismissed had they not been withdrawn.
We are extremely disappointed to see that Dr Day has subsequently claimed on social media and in the press that he was forced to withdraw his case as he claims that the Trust threatened him with the prospect of paying our legal costs. All of this is simply untrue: we did not threaten Dr Day with legal costs to pressure him to drop his claim – his legal representatives approached us to settle the claim on Dr Day’s behalf. This is because it was clear to them that Dr Day’s case was not going well. Dr Day had a solicitor and a barrister representing him throughout and was always able to take advice before making any decisions.
On the issue of costs, we had decided not to pursue Dr Day for legal fees before he withdrew his case. In any case, it is worth noting that costs at employment tribunals are only awarded in exceptional cases. As the Citizens Advice Bureau advises, a judge is only likely to order someone to pay costs if they think they have lied or misled the tribunal or haven’t cooperated at every stage. In addition, when the employment tribunal does order someone to pay costs, they take into account their personal circumstances and how much they can afford to pay – so full costs are rarely awarded.
When they approached us about agreeing to settle the case, Dr Day’s legal representatives proposed having a confidentiality clause in place as part of the settlement. We rejected this as we want to be clear and open on the facts. Much of the publicity and social media about this case has created a negative impression of the Trust, and has not reflected how we are fully committed to supporting anyone who raises concerns, or our commitment to continually improving the quality and safety of our services.
It is also important to note that no financial payment was made by the Trust as part of the settlement. Dr Day has commented on social media about the NHS legal costs relating to this case. The reason we required legal representation was because Dr Day had made serious accusations against the Trust and was claiming for loss of career earnings of £5.5 million.
4 December 2018