Dr Chris Day withdrew employment tribunal claims for detriment to his career as a result of whistleblowing against Lewisham and Greenwich NHS Trust (LGT) and Health Education England (HEE) in October 2018. A spokesperson for Lewisham and Greenwich NHS Trust said:
“Since issuing a statement on this case last month, we have been asked to comment on allegations that Dr Day dropped his employment tribunal case against the Trust because four specific threats were made against him. We deny these allegations*.
“Throughout these employment tribunal proceedings, in which Dr Day sought career loss earnings of £5.5 million, Dr Day was represented by solicitor and a barrister. It is important to note that, while Dr Day was giving evidence, his legal team approached our legal representatives to ask if we could discuss settling the case on the basis of:
- Dr Day withdrawing his claims
- LGT and Health Education England (HEE) agreeing not to apply for costs
- Dr Day, LGT and HEE issuing a joint position statement.
“We have stated before that we believe this approach was made because it was clear to Dr Day’s legal team that his case was not going well and was going to fail. Certainly, no pressure whatsoever to start settlement discussions had been placed on Dr Day or his legal representatives by the Trust or our legal representatives.
“It is standard practice in settlement negotiations for the parties to discuss the risks and possible outcomes on all sides. When they made their approach about settlement discussions, Dr Day’s legal representatives indicated that it would be helpful to them for the Trust:
- To state what our position would be on costs if the tribunal were to dismiss Dr Day’s claims and make findings that he had not been truthful in his evidence
- To confirm whether we were prepared to agree not to make a costs application if Dr Day withdrew his application at that stage
- To indicate whether the Trust would agree to allow them to discuss these matters with Dr Day before he had finished his evidence (as an exception to the normal rule that a party may not discuss the case whilst giving evidence).
“In response to this request, the Trust’s legal representatives confirmed that if the tribunal were to dismiss Dr Day’s claims and make findings that his evidence was untruthful, then there would be an issue as to costs. This reflects that we are an NHS body responsible for public funds. In the discussions about a settlement, the Trust also confirmed that if Dr Day withdrew his claim at that stage, we would agree not to make any application for costs, and agreed to the request by Dr Day’s representatives to be allowed to discuss those matters with him even though he had not finished giving evidence.
“Dr Day’s legal representatives would have been well aware that costs are only awarded in exceptional circumstances, usually requiring some unreasonable conduct in bringing or conducting the claim, such as relying on a misleading or untruthful account. Their assessment of this risk would no doubt have influenced their decision to start settlement discussions with the Trust. Dr Day’s legal representatives would also been aware that 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.
“No financial payment was made by the Trust as part of the settlement, and our Board agreed to a joint statement with everyone involved, including Dr Day. This is included in our original statement. We do agree that Dr Day raised patient safety concerns in good faith.”
* Specifically, we confirm that the Trust and our legal representatives:
- Did not issue an ordinary costs threat in respect of the entire 21 day hearing if Dr Day cross-examined any of the Trust’s witnesses and lost the case
- Did not threaten a wasted costs application against Dr Day’s legal representatives
- Did not threaten Dr Day’s legal representatives with a referral to their legal regulator
- Did not threaten referring Dr Day to the GMC and have no intention of doing so.