Following the conclusion of a court case, on 11 May 2018:
Mr Jesudason statement
“Today’s ruling draws a line under a long-running case.
“The BMA is resolute in its belief that doctors should be able to raise concerns – particularly where patient safety may be at risk – and it was for this reason that in 2012 the BMA supported Mr Jesudason in a High Court Claim against Alder Hey Children’s NHS Foundation Trust (Alder Hey).
“However, it transpired during the proceedings that false information had been communicated by Mr Jesudason to his employers, and subsequently to the BMA and the independent solicitors engaged to support him regarding leaks to the media, in direct contravention of the terms of Mr Jesudason’s BMA membership.
“Under cross examination in the legal proceedings, Mr Jesudason admitted to having provided false information that underpinned his legal claim. When provided, the correct information called into question the likely success of his claim.
“Then despite having been warned by his solicitors that documents provided to him by Alder Hey, in the litigation, could not be used for any other purpose prior to trial, Mr Jesudason leaked the same to Private Eye magazine. It published an article which referred to the documents a few days before trial.
“Mr Jesudason also admitted to having done this under cross examination despite having previously denied the same, this put Mr Jesudason at risk of being in civil contempt of court and at risk of incarceration and resulted in the collapse of his claim.
“Mr Jesudason withdrew his claim and agreed to pay Alder Hey’s legal costs. He refused to repay costs the BMA had met running into tens of thousands of pounds. The Court has today awarded the BMA those costs. The Court has also refused him leave to appeal the judgment against him.
“The BMA’s position has always been that doctors should be able to work in a culture of openness so that concerns can be raised without fear of reprisal. At the same time, we have a responsibility to our wider membership, including those doctors to whom we provide access to and pay for independent legal advice, which is why we felt it appropriate to seek to recoup these costs from a member whose wilful actions, not those of his legal representatives or the BMA, led to the collapse of his case.
“We will be reviewing today’s judgment in detail before making any further comment.”
1. Why did the BMA issue legal proceedings against Mr Jesudason, a whistleblower who raised concerns about patient safety issues?
The BMA supported Mr Jesudason in bringing a legal claim against his employers Alder Hey ChilMren’s NHSFT (‘Alder Hey’). Based on the information that he provided to us, and the independent solicitors who we paid for, we were successful in obtaining an interim injunction preventing Alder Hey from convening a meeting at which he would have likely been dismissed.
His employer continued to defend the claim and seek to prevent us from turning the interim injunction into a final injunction.
During the course of cross examination, it became clear that Mr Jesudason had misrepresented facts, both to his employers, Alder Hey, and the independent Solicitors, Gateley, who were advising him. The result of this was that Mr Jesudason’s case fell apart, and he faced a potential for being in civil contempt of court?
The BMA has a responsibility to its wider membership and a duty to use members money wisely, and for this reason we expect members to be honest in their dealing with the BMA and the solicitor that we provide. The BMA’s agreement to pay the lawyer’s fees is conditional upon the member being honest in their dealing with the BMA and the solicitors.
The BMA asked Mr Jesudason to pay the solicitors fees, and he refused to do so. In the circumstances the BMA felt that it was inappropriate to expect members’ subscriptions to fund these charges, which is why we sought to recoup the costs from Mr Jesudason – the member whose wilful actions, not those of his legal representatives or the BMA, led to the collapse of his case.
2. What were the misrepresentations of fact in this case?
This was a case where Mr Jesudason was claiming that the reason his employers were wishing to dismiss him was due to protected disclosures he had made in 2009 and 2011. His employers wanted to convene a meeting in July 2012 to consider his dismissal.
Alder Hey claimed that the reason they wanted to hold the meeting to consider his dismissal was not related to the protected disclosures in 2009 and 2011 but was rather due to a breakdown in working relationships. They cited the fact that some of the persons complaining about Mr Jesudason had never been the subject of any complaint by him, and that some of the issues that were being raised about Mr Jesudason predated the disclosures he had made.
Gateley solicitors, working with an alongside Counsel, determined that, based on the facts as presented to them by Mr Jesudason, his claim satisfied the BMA’s merit criterion and was eligible for BMA support.
In May 2012 an article appeared in Private Eye magazine that raised many of the issues that Mr Jesudason had previously raised about Alder Hey and which was critical of Mr Jesudason’s colleagues.
Mr Jesudason was asked by his employers, and subsequently by his solicitors, if he had provided the information for this article and he denied having done so.
Had he admitted to having done so this would have provided strong evidence in support of his employers belief that there was a breakdown in working relationships that would have justified his dismissal.
During legal proceedings there is an obligation of both parties to provide relevant documentation to the other party, this process is known as the disclosure process and effectively requires each side to show their cards to the other. The disclosure process is confidential and neither party can use documents that were disclosed for any other purpose until the documents have ben relied upon in Court, whereupon they may enter the public domain. This was explained to Mr Jesudason, by Gateley solicitors, on two occasions.
A few days before trial, in December 2012, another article appeared in Private Eye which drew upon information that had been provided as part of the disclosure process. Mr Jesudason admitted under cross examination that he had disclosed document to Philip Hammond of Private Eye and therefore was the source of the information for the article. This admission risks Mr Jesudason being found to be in civil contempt of court as he had misused confidential documents.
Following these confessions Mr Jesudason admitted to the Court that it may be difficult for his colleagues to ever trust him again. The duty of ‘trust and confidence’ is at the core of the employment contract so this admission was significant.
3. People makes mistakes, but he was a whistle-blower so why not support him anyway?
The BMA does not dispute that Mr Jesudason raised issues that were of genuine concern to him in 2009 and 2011; we encourage all of our members to raise concerns appropriate and through the correct channels and we provide advice to our members on how best to do this.
Responsible employers support and value the raising of concerns
It is unlawful for employers to subject workers to any detriment for raising concerns, however the law does not provide whistle-blowers with immunity from being dismissed for reasons that are unrelated to their protected disclosures. In this case Alder Hey were claiming that there had been a breakdown in working relations with his colleagues. Mr Jesudason’s admission that he was the source of the information behind the article in the Private Eye in May 2012 lends weight to the employers suggestion that there had been a breakdown in relations. Mr Jesudason’s previous denial that he was the source of the information for the article prevented the lawyers from making an informed assessment of the merits of his case.
The BMA, as a responsible trade union, cannot use members funds to support litigation that is premised upon incorrect facts. In this case the evidence did not suggest that Alder Hey had subjected Mr Jesudason to any detriment consequent to his raising of concerns.
4. I have heard it suggested that the BMA had a conflict of interest and were protecting other members who Mr Jesudason had complained about, what is your response to this?
There was a conflict between different members interests in this case, and the BMA had members on both sides of the issue who needed advice. The BMA instructed two teams - one to advise Mr Jesudason and another team to advise the other members. To ensure there was no possible conflict of interest each team was overseen by a different Head of Regional Services and an information barrier was erected between the two teams to ensure that all members could be appropriately advised on a confidential basis.
The BMA’s advisers in the North of England sent the case for the consideration of an independent law firm (Gateley), and specialist counsel was also instructed. Neither Gateley or Counsel had any conflict of interest, indeed they would be in breach of their professional obligations if they were to act in circumstances of a conflict.
Indeed in paragraph 18 of the Judgment Mr Justice Timothy King stated that:
“There has been nothing placed before me to sustain the proposition that these legal representatives were in a position of conflict of interest as regards the opposing side, or did anything other than act in the best interests of the Defendant”.
5. What is the story behind the settlement offer made to Mr Jesudason, is it right that he be paid off for being silent?
Defendants in litigation often make offers of settlement for commercial purposes, and without any admission or acceptance of fault. These offers are meant to be confidential and should not become known to non-parties.
When a law firm receives an offer of settlement it is under a professional obligation to communicate this to its client, and it for the client to decide whether or not to accept the offer of settlement.
Settlement offers cannot be used to prevent anyone from raising concerns about matters of public concern, while it is possible to have a confidentiality clause within a settlement agreement any such clause is void in so far as it purports to preclude the worker from making a protected disclosure. At no point is the BMA aware of Alder Hey making any offer of money to Mr Jesudason in return for him not raising issues of concern.
6. So why hasn’t the BMA been more vocal in explaining its side of the story in respect of Mr Jesudason?
The BMA did not wish to make any comment about this matter until judgment had been handed down on Friday 11th May 2018.