• Plastic surgeon loses appeal against costs ruling from employment tribunal
  • Tribunal made order against Jonathan Brooks after he lost whistleblwing claim against hospital trust
  • Employment Appeal Tribunal says judgment should not deter whistleblowers with a good case

A consultant surgeon must pay an NHS trust £170,000 after he lost a whistleblowing case on appeal.

Jonathan Brooks, a plastic surgeon, sought to overturn a ruling from an employment tribunal last year saying he must pay Nottingham University Hospitals Trust’s costs in the case. But the employment appeal tribunal last week ruled the original decision had been correct. 

It rejected the argument that a large costs order would discourage other whistleblowers, saying it would only deter a “whistleblower acting unreasonably” or pursuing a claim “wholly lacking in merit”.

Mr Brooks told the original tribunal he had made18 protected disclosures to the trust between April 2011 and October 2014, including about staffing levels in the children’s burns unit.

After a 27-day hearing the tribunal in Nottingham ruled that the detriments he complained of were not caused by the whistleblowing, but began before it.

It accepted that most of his disclosures could be classified as whistleblowing, but added: “the claimant has been shown to be distorting the truth in relation to a central theme of his evidence.”

It added: “Our conclusion is that the claimant, although not being deliberately untruthful or dishonest with the tribunal, had a distorted perception about what in fact happened to him and the reasons for it which led him to conclude that he had a case which was eminently arguable before the tribunal.

“However, we are satisfied that any reasonable and objective person looking at the evidence which was available to the claimant at the time of the commencement of the proceedings would not have so concluded. It is clear in the view of the tribunal that many of the allegations of detriment on the grounds of public interest disclosure made by the claimant were so weak as to have had no reasonable prospect of success.”

The appeal panel found that Mr Brooks was likely to have the means to pay the costs, considering he had been being paid by the trust while the process was going on and had a successful private practice.

It said: “It was correct to state, as the tribunal did, that the claimant continued to be in receipt of his annual salary. It was also not incorrect to refer to [the] claimant’s own admission that he had been very successfully working in the private sector. The tribunal’s assumption that he was no doubt earning substantial additional income through that means was also not unreasonable.”

In a statement given to HSJ, Mr Brooks said: “This is a long running and on-going issue so it would not be right to comment at this time.”

Nottingham University Hospitals Trust has been approached for comment.