A tribunal has found that an NHS Trust that deleted as many as 90,000 “potentially” critical emails during a legal hearing brought by a whistleblower had not deliberately attempted to conceal evidence.
Chris Day, a former junior doctor at Queen Elizabeth Hospital’s intensive care unit (ICU) in Woolwich, brought a tribunal case against Lewisham and Greenwich NHS Foundation Trust after the trust had issued allegedly false and detrimental public statements about him.
Day claims that his training contract with Health Education England (HEE) was terminated within six weeks of his placement with Lewisham and Greenwich ending as a result of a dispute that developed after he had blown the whistle on staff shortages linked to two patient deaths in 2013.
He says he has been unable to complete his training as a result and has been forced to work as a locum ever since.
The South London Employment Tribunal heard in July 2022 that Lewisham and Greenwich’s head of communications, David Cocke, had allegedly destroyed digital evidence before he was due to testify.
Tribunal judge Anne Martin said in a verdict last week that Cocke may have deleted “a huge number” of emails while the trust’s CEO was giving evidence. But she found that the mass deletion was not a contempt of court, nor a deliberate “act of concealment” or an attempt to pervert the course of justice.
Speaking after the judgment, Day told Computer Weekly he was disappointed that the tribunal had “explained away” the deleted emails.
“It is very disappointing that an employment tribunal can effectively just explain away an NHS trust director destroying an entire email archive before giving evidence in a whistleblowing case,” he said.
He said the tribunal had also explained away an earlier incident in which another NHS director, responsible for instructing solicitors to represent Lewisham and Greenwich in the legal action brought by Day, had her NHS email account permanently deleted in 2018.
Day said the judgment made no mention of the possibility of recovering the deleted emails, nor was any expert opinion sought by the trust about the emails allegedly destroyed during the tribunal hearing.
Chris Day, whistleblower
The tribunal found that Lewisham and Greenwich Trust had caused detriment to Day in one of the statements it had issued about the disputed settlement of litigation between the two parties and HEE in 2018.
This detriment, however, could not be linked directly to his whistleblowing activity at the Woolwich ICU.
Day also said the public had been “let down” by what he believes was a failure of the tribunal to properly address the trust’s withholding of a key trust board meeting, letters between the trust and MPs, as well as email correspondence with senior medics to whom he had flagged ICU patient safety concerns.
Day and his trade union, the British Medical Association – which funded and supported Day’s legal team for the June hearing – are understood to be considering their next steps in light of this week’s judgment.
A question of fairness
The high-profile case has raised questions around the adequacy of information governance practices at NHS hospital trusts and the consideration given to digital evidence by employment tribunals.
Following allegations that the trust had withheld and destroyed emails, Day’s legal team applied for a strike-out ruling – which would have dismissed the trust’s case – on the basis that the trust’s failure to disclose arguably key evidence had prevented a fair hearing from taking place.
The tribunal, however, determined that “whilst we take a dim view of the disclosure issues, we find that a fair trial is possible and there is no substantial risk of injustice”.
The verdict said that Cocke’s actions did not affect the fairness of the tribunal hearing.
“Whether or not there is any potential legal action against him for the destruction of the documents, (which is not for us to determine) does not in itself determine the issue of whether a fair trial is possible,” it said.
Responsibility to preserve data
Questions have been raised about the hospital trust’s responsibility to preserve and manage emails, documents and electronic archives that were potentially relevant to the case.
The health service’s national data provider, NHS Digital, told Computer Weekly in July that it had been Lewisham and Greenwich Trust’s responsibility to preserve emails and electronic documents.
The trust’s barrister, Daniel Tatton Brown KC, referred to an unsigned witness statement submitted to the tribunal for Cocke, in which it was claimed he had attempted to call NHS Digital shortly after he had entered a trust site to carry out the bulk deletion of emails and electronic archives.
NHS Digital said it had no record of any phone call or other communication attempt having been made by Cocke after he had attempted to “permanently destroy” trust emails in July.
Tatton Brown read out excerpts of Cocke’s witness statement at the hearing, which stated that he had “deliberately” and “permanently” deleted the cache of emails and other electronic records on 4 July 2022 – during the same week he was due to give evidence.
Cocke did not give evidence to the tribunal, citing illness on the day he was due to testify. The tribunal noted that the only evidence submitted about Cocke’s medical condition had been a GP note determining he was fit to give evidence. But Judge Martin accepted that Cocke was medically unfit to do so.
“Whilst the members of this tribunal are not medically trained, it appeared that the apparent contradictions raised by the claimant [about Cocke’s accounts of his health condition and alleged destruction of evidence] were indicative of a progressing mental health issue and this taken together with the irrational act of deleting emails points to Mr Cocke being quite unwell,” she wrote in the verdict.
While the deliberate “act of concealment” alleged by Day’s legal team was “a possible scenario”, Martin said the tribunal accepted that Cocke had been unfit to give evidence and that he had not destroyed the emails in a deliberate attempt to obstruct or pervert the course of justice.
She said it was Cocke who had first provided extra documents that had not been disclosed to the tribunal.
The tribunal found that the trust’s CEO, Ben Travis, had given “incorrect” evidence over whether records existed of an extraordinary board meeting at the centre of Day’s case.
A note of the extraordinary board meeting, held on 14 October 2018, was one of a number of late disclosures of key evidence to the court in July 2022.
The trust had initially withheld the document from Freedom of Information (FoI) requests and the tribunal, before it was finally disclosed more than two weeks into the hearing.
When this journalist sought a copy of the board meeting note through an FoI request in 2020, the trust said it held no record of the meeting, and that “a formal meeting of the trust board was not held on Sunday 14 October”. It added: “Board members did have a confidential teleconference that day.”
In her ruling, Martin observed that the board meeting note was “only disclosed during the hearing” as a result of Cocke’s efforts.
She wrote, however, that “there were positive assertions” that records of the meeting were not held by the trust “both in Mr Travis’s evidence before this tribunal” and in an earlier tribunal hearing in March 2021. “This was incorrect as a note of the meeting has now been produced.”
Other questions remain in relation to the trust’s disclosures to the tribunal over alleged withholding and destruction of evidence.
The judgment noted that Cocke was declared fit and subsequently withdrawn from giving evidence by the trust a number of times during the hearing and that a separate law firm, Kingsley Napley LLP, was engaged to represent Cocke.
Computer Weekly has asked Lewisham and Greenwich Trust to confirm whether or not it has been paying or will pay Kingsley Napley’s legal fees.
Day’s barrister for the tribunal case, Andrew Allen KC, said no forensics assessment, nor any other kind of IT expert opinion, was provided by the trust to support its legal team’s arguments as regards its email destruction claims at the hearing.
The tribunal also heard a number of disclosures and allegations concerning the employment contract between Day, the trust and Health Education England – soon to be part of NHS England – that had been withheld for some three years during the litigation.
The judgment noted that a former trust director and instructing client – who instructed the trust’s solicitors – in the case until 2018, Janet Lynch, did not give evidence at the tribunal hearing. The NHSMail account belonging to Lynch was, according to NHS Digital, “permanently deleted”.
Protracted legal battle
Day’s protracted legal battle first began when, aged 28, he flagged under-staffing as a junior doctor working at Queen Elizabeth Hospital Woolwich’s intensive care unit in 2013.
He says his training number was deleted as retaliation for his whistleblowing activity, leaving him unable to complete his training and progress his career. He claims the unit’s failings that he reported were subsequently “covered up”.
After four years of attempting to get his case heard, Day was granted a full tribunal hearing in 2018.
He withdrew his whistleblowing detriment claim when he said he was threatened with legal costs liability – totalling more than £500,000 – by the trust and HEE, which is due to merge with NHS England by April 2023.
The June tribunal, however, found that the trust’s position on costs did not amount to a threat. They were “part and parcel of the normal process of litigation and therefore not threats as such”.
Even if costs were awarded against Day, the tribunal found that it was unlikely they would be of the magnitude of £500,000.
“The way the costs issue was made was that if the claimant pursued his claim, lost and had adverse findings as to truthfulness then costs would be an issue,” the verdict said.
Day contends that the tribunal also dismissed documented evidence of cost threats that was provided during the summer hearing.
A separate hearing, brought by Day, that will consider claims over the withheld employment contracts signed by the trust and HEE is scheduled to take place in December.
Lewisham and Greenwich Trust has been contacted for comment.