Tribunal of the Absurd Part Two: Dr Chris Day loses his whistleblowing appeal

Posted on August 20, 2025 by davidhencke

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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BMA chair seeks whistleblower Dr Usha Prasad’s reinstatement and the dropping of cost hearings in the case

Posted on September 14, 2023 by davidhencke

But the trust is rushing to reconvene the cost hearing before she can go to a tribunal to challenge the verdict against her

Dr Phil Banfield chair of the British Medical Association

The British Medical Association has belatedly intervened in the long running dispute between whistleblower cardiology consultant Dr Usha Prasad and the Epsom and St Helier University Trust (now combined with St George’s Hospital Trust).

Dr Phil Banfield, chair of the BMA, has written directly to the chief executive of the trust, Jacqueline Totterdell, asking her to drop the costs hearing and reinstate her.

Dr Prasad was facing a hearing last month where the trust was demanding that she pay £180,000 of its costs including the fees of 21 lawyers employed by Capsticks and a QC. It was called off at the last moment when one of the tribunal panel failed to turn up. The financial demand was suddenly reduced to £24,000 without any explanation from the trust at the same time. As reported previously 99.95 per cent of employment tribunals never ask the claimant to pay the employers’ costs. If it had gone ahead it would have been a record sum claimed by any health trust against one of its medical staff.

The BMA’s top level intervention by its chairman comes after a long campaign by consultants supporting Dr Prasad to ask their union to act. The BMA previously decided not to give her legal support which meant much of the time she was a litigant in person fighting 21 lawyers. One hearing which I attended, she was represented by a barrister, but the judge Tony Hyams-Parish, who lives in the Epsom and Ewell area, threw out her whistleblowing claims and her race and sex discrimination claims as ” misconceived” or ” without merit”.

Jacqueline Totterdell, chief executive of the trust

The BMA in their letter to the trust highlights the race complaints.. Quoting from the trust’s own information it says: “The figures which Dr Prasad has shared with us are attached and point to a disproportionate impact on ethnic minority doctors during a period when Dr Prasad was employed by the Trust. It is notable that 10 of the 11 doctors subjected to conduct concerns were from an ethnic minority background when ethnic minority doctors made up approximately one in three of the workforce for the period 2018-2020. It is of further note that all of those excluded, referred to the GMC, or dismissed were from an ethnic minority background.”

The BMA has asked for an explanation. Certainly it seems to me that either the trust’s recruitment policy was so flawed about the BAME doctors it employed or the people responsible for this were racially biased. The judge who heard the same evidence ignored it.

The judge also expunged from the record whistleblowing claims by Dr Prasad about the ” avoidable death” of a heart patient whose death was never reported by the hospital to the coroner or the Care Quality Commission. At the hearing Dr Richard Bogle, the head of cardiology, admitted it was wrong and should have been reported. The judge ignored what he said allowing the trust to try and claim that whistleblowing has nothing to with her dismissal.

The letter from the BMA emphasises the distress caused to Dr Prasad. “It is with concern we note the impact that this is having on Dr Prasad who reports great distress at facing a cost application before her appeal is heard where she is seeking redress for whistleblowing detriments including discrimination and harassment which she vigorously contends she has suffered while in the employment of Epsom and St Hellier University Hospitals NHS Trust.”

It calls on the trust to withdraw from costs proceedings against Dr Prasad adding: “We are concerned that this threat from employers of legal costs may be used to discourage people from raising legitimate public interest concerns or seeking to redress workplace injustices in the future. As I am sure you are aware, it is important that doctors are able to raise concerns about behaviours and actions that may have an adverse effect on patient safety.”

The letter asks the trust to reconsider re-instating Dr Prasad adding ” alongside an apology and reversal of damages caused to her, thereby resolving this long running litigation and allowing Dr Prasad to fulfil her career in medicine.”

I asked the trust for its response. This is it:

“It is entirely inaccurate that the Trust is seeking legal fees in relation to issues stemming from Dr Prasad raising patient safety concerns. The Employment Tribunal heard a number of claims by Dr Prasad which they unanimously dismissed, and commented that some of them were ‘completely misconceived’. The Employment Tribunal will hold a further hearing to decide whether Dr Prasad should pay a contribution towards the Trust’s costs.

“We take patient safety concerns very seriously and encourage everyone who works at the Trust to raise issues at every opportunity so we can make improvements to patient care.”

The trust is as good as its word on rushing through the case. At the case management hearing that followed the adjournment of the hearing the KC for the trust got them to agree to rush through the next hearing despite a huge backlog of cases at that tribunal.

Dr Prasad has only until September 29 to tell them whether she can pay the £24,000 and provided full details and documents of her income and outgoings. She has until October 20 to provide a witness statement backing up the reasons why she cannot pay. She also has to provide a skeleton argument five days before the hearing. No date has yet been fixed but she has a date at the end of January for her employment appeal tribunal hearing where she can challenge the judge’s verdict.

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