• Health minister reveals costs contesting Chris Day’s employment actions
  • Junior doctor successfully won whistleblower protection from Health Education England for trainees
  • But ultimately withdrew his claim of unfair treatment by his trust and the agency

A whistleblower’s four year legal challenge cost the NHS nearly £700,000, it has emerged.

Chris Day, a junior doctor, brought a claim in October 2014 that he was dismissed and treated unfairly by Lewisham and Greenwich Trust and Health Education England because he was a whistleblower.

The ensuing legal contest cost the trust £285,000 and HEE £433,000, health minister Caroline Dinenage told MPs this week, in response to a written Parliamentary question.

The HEE bill included a £55,000 contribution to Dr Day’s costs incurred when he successfully challenged an employment tribunal judgement that HEE did not count as an employer to doctors in training.

Dr Day’s appeal court challenge changed the law. Now both HEE and NHS trusts are co-employers to trainee doctors and trainees have whistleblower protection from both the agency and their trust.

Regardless of this success, Dr Day ultimately withdrew his claim of unfair treatment because he was a whistleblower in 2018.

A joint statement on 15 October, agreed by Dr Day, HEE and the trust, said he withdrew his case because the employment tribunal was “likely to find that both the trust and HEE acted in good faith towards Dr Day following his whistleblowing and that Dr Day has not been treated detrimentally on the grounds of whistleblowing”.

The statement also acknowledged that Dr Day was a whistleblower who acted in good faith when he raised safety concerns in January 2014. It also said he “performed a public service” by establishing more whistleblower protections for junior doctors.

Lewisham and Greenwich Trust issued its own longer statement on 24 October, explaining the background to the case and that “no financial payment will be made by the trust as part of the settlement”. It added it would not pursue Dr Day for costs.

Dr Day told HSJ: “My wife and I decided to withdraw the case because of six figure cost consequences that were attached to proceedings in the event that the case did not succeed.”

He said the “cost consequences” were outlined before cross examination of any of the NHS’ 14 witnesses and were used to “secure the wording of the agreed statement once I had agreed to withdraw the case after completing my six days of evidence”.

A spokesman for Lewisham and Greenwich NHS Trust said the settlement negotiations were initiated by Dr Day “not as a result of any pressure placed upon them by the trust, but because it was apparent…that Dr Day’s case was not going well”.

He said the trust had decided not to pursue Dr Day for costs and that costs are only awarded to the successful party in employment tribunals as an exception, rather than the rule. Dr Day’s personal circumstances would also have been taken into account if costs were awarded, he added.

Updated to include a comment from the trust and to amend the date the joint statement was issued to 15 October, not 1 October as previously stated.