Southam v Berkshire Healthcare NHS Foundation Trust: whistleblowing appeal dismissed despite tribunal errors

The Employment Appeal Tribunal has dismissed a whistleblowing appeal against an NHS trust, holding that an employment tribunal wrongly rejected two claimed protected disclosures but that its positive findings on the reasons for the treatment complained of left no room for a different result.

In Southam v Berkshire Healthcare NHS Foundation Trust [2026] EAT 150, His Honour Judge Auerbach, the Deputy President, heard appeals against the original and reconsideration decisions of a Reading tribunal. The claimant, a lead referral coordinator who resigned in 2019, had represented herself at the multi-day hearing. The tribunal found that she made three protected disclosures, but dismissed her complaints of detrimental treatment and constructive unfair dismissal.

Only two grounds survived a rule 3(10) hearing, and they narrowed considerably once Mark Greaves, instructed by the Free Representation Unit for the claimant, appeared. The challenge to the reconsideration decision was not pursued, and it was accepted that the dismissal findings could not be disturbed. Andrew Allen KC, instructed by DAC Beachcroft LLP for the trust, showed that most detriment complaints had failed on the facts, pre-dated the disclosures in issue, or were pleaded as linked to other disclosures. The first ground fell away entirely. The second survived only in relation to two claimed disclosures, known as PD3 and PD9, and only as to two complaints: the absence of regular supervision and an unsuccessful secondment application. The judge described the concessions as correctly made.

On the substance, the judge found errors in the tribunal's approach to both disclosures. PD3 concerned clinicians allegedly prioritising meetings and administration over patient care, increasing avoidable admissions. The tribunal accepted that the subject was discussed at a meeting with the head of service, supported by a note the claimant had emailed to the trust's Freedom to Speak Up Guardian, yet concluded the evidence did not establish a qualifying disclosure. Judge Auerbach said that reasoning was insufficient. Referring to a "headline topic" did not engage with the note's content, and the reliance on a lack of context was unexplained. He cited Kilraine v London Borough of Wandsworth [2018] EWCA Civ 1436 on the need for sufficient factual content and specificity.

PD9, which concerned inadequate training for therapy assistants and locum staff, was rejected partly because the tribunal said the matter was not referred to in the same note. The judge held that was at least a material error given the substantial overlap with a bullet point in the document. In neither case, however, could he say the tribunal would have been wrong to find that the elements of a protected disclosure were not made out.

The decisive question was therefore whether the errors could affect the outcome. The judge concluded they could not. On the supervision complaint, the tribunal had found that meetings did not take place because of the manager's workload, the claimant's own reluctance on occasion, and a difficult working relationship. Mr Greaves argued that a disclosure need only materially influence the treatment. The judge read the tribunal's reference to the manager being uncomfortable with the claimant's behaviour as alluding to other specific findings, including a dispute over mobile telephone use and the claimant's refusal to meet for a review, leaving no space for PD3 or PD9.

On the secondment complaint, the tribunal had criticised the recruitment process as clumsily handled but accepted the decision-maker's explanation that a colleague with direct experience of the role had become available. It also found she was unaware of any disclosures. The claimant argued that a later passage contradicted that finding. The judge disagreed, reading it as a reference to a conversation more than a year earlier that did not make the decision-maker see the claimant as a whistleblower. Listing a Freedom to Speak Up Champion role on a CV did not change that.

Both appeals were dismissed.