Judge throws out NHS whistleblower’s challenge to ruling on deletion of 90,000 emails
Carsten Reisinger – stock.adobe.
Appeal tribunal dismisses doctor’s bid to quash decision that cleared London hospital trust of concealing evidence through attempted destruction of electronic documents during live court proceedings
An NHS doctor has lost his appeal to challenge a court decision that cleared a hospital trust over allegations of deliberately concealing evidence.
The Employment Appeal Tribunal, which considers appeals where mistakes are believed to have been made in the employment tribunal system, has dismissed NHS whistleblower Chris Day’s appeal, concluding the errors made by a previous judge “were immaterial to the outcome”.
Day brought an appeal against a ruling in 2022 which cleared Lewisham and Greenwich NHS Foundation Trust (LGT) of claims that it concealed evidence after one of its communications chiefs had deleted as many as 90,000 “potentially” critical emails midway through a legal hearing.
Appeal tribunal judge Clive Sheldon KC said on 19 August that the 2022 tribunal’s “reasoning [was] found to be within its discretion and supported by the evidence”.
The appeal tribunal heard in July that LGT had displayed “at best cavalier, at worst deceitful behaviour” over its disclosure of evidence in the 2022 case brought by Day over public statements made by the trust he considered to be defamatory and detrimental.
His barrister Andrew Allen KC cited an attempt by a trust employee to mass delete electronic evidence while the 2022 tribunal hearing was live, “incorrect” evidence given by trust CEO Ben Travis and the trust’s withholding of records of an extraordinary board meeting held during the course of a previous court hearing as evidence of alleged poor conduct.
Questions over e-discovery
LGT’s barrister, Daniel Tatton Brown KC, downplayed the importance of the trust’s late evidence disclosures and argued the ex-communications director, David Cocke, had in fact brought additional material to the tribunal’s attention, in spite of his attempts to delete up to 90,000 emails. Cocke did not ultimately make himself available for cross-examination in 2022.
An e-discovery expert who Computer Weekly spoke with following the 2022 tribunal questioned LGT’s claims over “permanent” evidence deletion. No independent IT experts were present at the 2022 or the 2025 appeal hearings, with key questions remaining unanswered over the targeted electronic documents’ status.
Judge Sheldon concluded that the 2022 ruling by Judge Anne Martin erred on two grounds. He found that Martin, who cleared LGT of wrongdoing, had not considered whether the trust’s “refusal to remove public statements after concerns from the Care Quality Commission [a watchdog body] constituted a detriment”.
Former health minister Norman Lamb argued in the 2022 hearing that these statements were potentially “defamatory” to Day.
Martin’s decision also “wrongly” determined that Day’s “claim fell outside section 47B” of the Employment Rights Act, which protects workers from detriment from their employer in retaliation for whistleblowing.
“The Employment Appeal Tribunal concluded that the errors were immaterial to the outcome, as the Employment Tribunal had correctly found that the protected disclosures did not materially influence the Respondent’s actions,” according to the judgment.
Judges ‘ignored’ destruction of emails
Day told Computer Weekly that tribunal judges had “ignored” and effectively trivialised the attempted destruction of evidence in his prolonged court battle.
“The case is about MPs and the press being misled about an NHS whistleblowing case, and why it suddenly settled,” he said.
“To get to their destination now two judges have ignored large swathes of evidence and multiple acts of destruction of evidence. People should be asking how and why this has happened.”
A trust spokesperson said: “We note the outcome of the Employment Appeal Tribunal and have no further comment to make.”
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