Amidon v North London NHS Foundation Trust: EAT defines "miscarriage of justice" in whistleblowing claims

The Employment Appeal Tribunal has given the first appellate guidance on the meaning of "miscarriage of justice" in section 43B(1)(c) of the Employment Rights Act 1996, holding that the phrase requires a profound injustice or failure in the administration of justice.

In Amidon v North London NHS Foundation Trust [2026] EAT 171, His Honour Judge Barklem dismissed all ten grounds of appeal brought by a child and adolescent psychotherapist whose claims of whistleblowing detriment, direct race discrimination and racial harassment had been rejected by the Central London Employment Tribunal.

The claimant was one of two clinicians in the Trust's Complex Assessment Team, which produced expert reports for Camden local authority in family and care proceedings. Relations with the authority's social workers deteriorated during and after the pandemic, amid disagreements over children's welfare and complaints about the team. The authority paused referrals and the Trust opened an investigation into the claimant.

She relied on 16 alleged protected disclosures made between July 2021 and October 2022. The tribunal found four were protected but that none had caused the detriments alleged.

A threshold of gravity

There was no appellate authority on the term. Lydia Seymour KC, for the claimant, argued that the tribunal had placed an impermissible gloss on plain statutory words, setting too high a hurdle given the legislation's purpose of encouraging responsible whistleblowing. The disclosures in question alleged, among other things, that social workers were trying to discredit the team's reports and that an expert report had been omitted from a court bundle.

Thomas Cordrey, for the Trust, contended that Parliament had chosen the phrase over lesser expressions such as "error of law" or "unfairness in legal proceedings" precisely to filter out less egregious wrongs.

HHJ Barklem agreed. The term applies only to the justice system, meaning the courts and tribunals, and imposes a requirement of gravity or seriousness. While accepting that difficulties would arise at the margins, he observed that the assessment was unlikely to be harder than the judgements of reasonableness tribunals make every day. The tribunal had construed the words rather than glossing them, and the judge noted that his conclusion will bind employment tribunals unless revisited on appeal.

Causation challenges

Challenges to the tribunal's approach to reasonable belief, and allegations of perversity, also failed.

The tribunal had been entitled to find that the pause in referrals was the local authority's decision, driven by the need to resolve safeguarding concerns and complaints rather than by the disclosures. The failure to produce a promised investigation report was properly attributed to poor management and changes of personnel. Two grounds were described as attempts to re-run a factual case that had failed below.

The tribunal's reasoning on an instruction to raise safeguarding concerns outside the Trust was "not a model of clarity", and the judge accepted that a detriment remains a detriment however fleeting. He nonetheless concluded that no detriment had ultimately been found and that any such detriment would have been de minimis.

Questioning on racism

The final grounds concerned an investigation meeting at which, the claimant said, the investigator had repeatedly and aggressively asked what she thought racism was. The tribunal preferred his contemporaneous notes, found the questions reasonable in the context of a serious allegation of racism by a service user, and held that a non-white employee would have been treated in the same way. The EAT found that reasoning adequate, noting the tribunal had fully addressed significant amendments to the investigator's witness statement.

Branch Austin McCormick LLP instructed counsel for the appellant; DAC Beachcroft LLP instructed counsel for the respondent.