For those with long memories some 32 months ago I wrote a disparaging blog about justice in employment tribunals after sitting through yet another hearing involving Dr Chris Day’s ten year whistleblowing battle against the Lewisham and Greenwich NHS Trust. So shocked I was over the way justice was meted out to Dr Day that I labelled it as the Tribunal of the Absurd – liking it to a Harold Pinter play that could be set in a court room.
This was the tribunal that revealed that lawyers and the Trust had held back evidence which should have been given to him and his lawyers years ago; that the chief executive of the trust, Ben Travis had lied under oath about a virtual board meeting and other matters to discuss his case, and that a senior communications officer of the trust, David Cocke, had gone into the trust’s offices at 5.0 am and destroyed 90,000 emails which could have been relevant to his case. The latter happened while the hearing was taking place and he then failed to appear as a witness.
Yet the judge Anne Martin ignored all this and exonerated the trust’s case against Dr Day. To remind readers the original claim was a serious patient safety issue – two people had died in the intensive care unit of Woolwich Hospital where he was working because of serious mistakes by other staff. Yet the trust for reputational reasons has always denied this really happened.
Now a long time later – the courts take ages to progress issues – a judge at an employment appeal tribunal has largely rubber stamped her decision and found against Dr Day and rejected an application to return legal costs to the British Medical Association to compensate for the extra days of hearing caused by the destruction and concealment of evidence. Worse than that during the hearing Dr Day’s reputation for telling the truth about a previous hearing was called into question. It was like the second house in the theatre of the absurd.
Mr Justice Sheldon who presided over the hearing found only two faults. He thought the tribunal should have ruled on whether the trust was wrong not to remove disparaging comments about Dr Day sent to MPs and the press after concerns were raised by the watchdog body, the Care Quality Commission was a detriment to Dr Day. And it criticised the tribunal for misinterpreting one area of employment law.
But the judgment adds: “The Employment Appeal Tribunal concluded that the errors were immaterial to the outcome, as the Employment Tribunal had correctly found that the protected disclosures did not materially influence the Respondent’s actions. The appeal against the Costs Judgment was also dismissed, with the Employment Tribunal’s reasoning found to be within its discretion and supported by the evidence.”
It refused to return the case to another employment tribunal for reconsideration.
What this means is that the trust’s actions in this case have been exonerated by a higher court. Mr Ben Travis is regarded as a credible witness despite not telling the truth under oath about the board meeting.
And Mr Cocke’s destruction of 90,000 emails while thought to be ” troubling” are largely exonerated setting what could be a dangerous precedent in other whistleblowing cases for people in NHS trusts and private companies to destroy evidence that should be passed under discovery to the claimant. They can now cite this judgment.
What was also amazing and bizarre was that the judge accepted from Daniel Talbot Brown KC , instructed by lawyers Capsticks, an argument used in another legal case which said that tribunals could take a benevolent view of the proceedings and if they did not comment on a finding it did not mean they had not considered it.
This seems to go against forensic testing of arguments put forward at a hearing – where both sides must probe for the truth. If they do this and a judge decides not to comment on the issue, surely this more like a dereliction of duty than anything else.
This judgment marks a bad day for whistleblowers and good day for bureaucrats who want to hide the truth. It shows that even if you have the support of medical experts to back your judgment and the support of two prominent former politicians, Jeremy Hunt, the former health secretary and Norman Lamb, a former health minister, this counts for nothing in the eyes of judges.
Perhaps the judges prefer the judicial theatre of the absurd to life in the real world.
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David, First thing to learn about life above all other things is this, those with power write the rules and make the judgements. And if necessary when making a judgement it is found necessary to re-write the rules, then the rules are re-written.
Forgive me for teaching my grandmother to suck eggs.
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Courts in the Uk are rigged against the individual to protect professional reputations. They are all theatres of the absurd in which the leading actors, the judges, play somersaults to defend the indefensible and close their eyes to the truth, no matter how unambiguous the evidence. In attacking the truth, they make 2 +2 = 5.
It can only be that our courts are far more concerned with hiding the truth and protecting the public face of NHS Trusts than truth and justice, or patient safety for that. Welcome to corrupt UK, as I discovered for myself:
https://patientcomplaintdhcftdotcom.wordpress.com/
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OMG
What an incredibly corrupt public organization the NHS has become where more money is spent covering up 1)their lack of care, 2)their many mistakes that lead to unnecessary deaths and 3) their scapegoating staff who have taken the time and trouble to raise health and safety concerns as the brave Dr. Chris Day has attempted to do.
Deleting 90,000 emails while this case was under review is destroying evidence, clear and simple.
The Employment Tribunal courts no longer provide justice, instead they defend the mistakes of the NHS.
the Employment Triubunal system and/or the presiding judges need to be sued for malfeasance and obstruction of justice as they have become complicit in the crimes of the NHS.
kudos 👏 to Dr. Chris Day.
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I agree Mrs KE, but it’s not only the NHS Trusts managements and NHS regulators which are corrupt. What about the judiciary and the corrupt employment Tribunal system which has NO role whatsoever? What they know about patient safety in the NHS can be inscribed on a pinhead. You can see this if you read many of the blogs on this site. One way of putting an effective STOP to much of this destructive wrecking of lives and careers is to BAN Trusts from dismissing any doctor who has raised a patient safety concern. This will exclude the greedy, uninformed lawyers who with their astronomical fees (paid by HMG!) are in effect depriving NHS Trusts of money which is better spent on care. Why doesn’t parliament act? Oh yes, sorry, of course, silly me….
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Alice Through The Looking Glass…the entire system is rigged, in favour of the NHS. It is a national disgrace.
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check out the new Liverpool Everton Football Club Stadium and you’ll see the name ‘HILL DICKINSON’ glowing in white lettering against a blue color associated with the NHS.
https://images.dngroup.com/image/eyJ3IjoxMjAwLCJmIjoid2VicCIsImsiOiI4N2QxOTg4MWIzZDhmYWQ4ZjMzMzdlNGM5OWQ5OThjNSIsImNyb3AiOls0NSwwLDcxOCwzNTldLCJyIjoyLCJvIjoiZ2xvYmFsIn0
Liverpool was known as a Labor stronghold and now the Employment Tribunal court judges who hold court in the great NorthWest can wink at each other and also wink at their friends at Hill Dickinson that they have put whistleblowers in their place in the so called pursuit of justice.
Its become a new national past time to reduce fired NHS whistleblowers to tears and financial ruin and scapegoat anyone who spoke out even privately against the covid so-called vaccines of which we were told were safe and effective but no one had a clue what was in them.
Let’s not forget what happened to Lucy Letby, she became the perfect scapegoat. Despite many experts stepping forward to dismiss charges against Lucy of murdering sick babies in neonatal care, the judiciary refuses to reconsider this new information.
Meanwhile the standard of care provided by the NHS continues to decline and more miscarriages and stillbirths have occurred since the covid vaccine rollout– see Dr. James Thorpe.
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Thank you, David for suuch a swift publication of the summary of the ‘absurd’ outcome for Dr Chris Day. I made brief comment on a LinkedIn post earlier today, that I was shocked, yet somehow not surprised.
The entire pantomine has been a farce, from what I can see. It reminds me of an old adage, about justice being seen to be being done; which for the clear reasons you have highlighted with common sense and reason have been thrown out of the window, simply isn’t the case here.
I am no legal scholar, But I have included a number of references to legal doctrines on my website, as a way to demonstrate the veracity of my campaign for an Independent NHS Complaints Service. The proposals.for which include a distinct pathway for NHS staff to raise concerns and “whistleblow”.
I find it incredulous that the NHS and what also appears to the the legal profession have been able to circumvent such vital and long standing legal principles. It certainly does not sit well with me at all.
I mentioned on LinkedIn that Dr Day has been inspirational to many, for standing up for what is right, in the name of Patient Safety. I for one will continue in turn to “fight the good fight”, and work to change the ‘rotten’ system to bring forward the truth and accountability.
My campaign will be holding an awareness event in Manchester, outside Manchester Central Exhibition centre on 15th & 16th September, raising awareness of our campaign and its potential for improving Patient Safety.
More information can be found on our website
http://Www.keepingthenhshonest.co.uk
Regards, Simon
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Dr. Wards comments and well made and we should all be grateful to Simon Shemilt and his group for being prepared to hold an awareness event outside the Patient Safety Congress in Manchester on 15th and 16th September. I would urge anyone who is able to go along and support him to do so.
I have looked at the content of this congress organised by the Health Service Journal with the headline sponsor being Radar Healthcare. They boast that over 1000 people will be at the 2 day event. Attendance cost per NHS delegate £525 which does not include travel or accommodation. Delegates can claim 11 Continuing Professional Development points. I ask -who is paying? Is it the delegates or the NHS organisations sending them? I also note there are 25 safety awards being made in various categories – most have 8 or 9 organisations as finalists.
I have to ask the question as to whether patients will be any safer as a result of this self congratulating jamboree the day after. I suspect the answer is no.
Message to Wes Streeting. If you are really committed to patient safety there are three simple steps:
1.Listen to people like Dr Day and Dr Ward and stop hounding them out of the NHS
2.Listen to patients
3. Act on what they tell you
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I feel very sorry for this doctor and anyone of good morals who wish to improve errors and learn from mistakes. Whistleblowing is one form of trying to reach the truth which someone who truly cares and wants improvements may use if ‘systems’ within their establishment are not successfully working to improve mistakes and errors OR worse, are seeking the opposite; to hide errors and never improve. The NHS is doomed if this immoral behaviour is supported by judges. It is sad for employees of NHS and the general public who rely on it. This poor doctor has been giving his life for 10 years to try to get his name cleared and the truth to be known and steps taken to improve the future of NHS; It must be like a jail sentence for him or worse. It’s like the post office scandal. I hope he finds a way through this.
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Allowing destroyed evidence and false testimony to go unpunished undermines public trust in the justice system.
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My family and I stand firm with the honest and respectable Dr Chris Day.
We demand Justice, a public apology, and compensation for the Dr Chris Day.
No more lies!
No more impunity!
With great concern for the gross injustice!
Elsa CCollins, Alan Collins and Family.
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