A child and adolescent psychotherapist has lost her appeal against findings that her employer did not subject her to detriments because she made protected disclosures, or discriminate against or harass her on grounds of race. The Employment Appeal Tribunal also gave guidance on the meaning of “miscarriage of justice” under the whistleblowing provisions of the Employment Rights Act 1996.
What did the EAT decide?
In Amidon v North London NHS Foundation Trust [2026] EAT 171, handed down on 10 November 2026, His Honour Judge Barklem dismissed the claimant’s appeal from the Central London Employment Tribunal.
The original tribunal had rejected claims of detriment on the grounds of making protected disclosures, direct race discrimination and harassment related to race. The appeal contained 10 grounds, addressing the tribunal’s treatment of alleged protected disclosures, its findings on detriment and causation, and its conclusions on the discrimination and harassment complaints. The EAT dismissed all 10 grounds.
The appeal arose from work undertaken by a Complex Assessment Team (CAT), which provided expert input to Camden Local Authority in complex family and care cases. The claimant, a Child and Adolescent Psychotherapist, worked in the two-person team with Dr Dan McQueen. They assessed families, prepared expert reports and, where required, gave evidence in family and care proceedings.
Relations between the team and local authority social workers deteriorated amid disagreements about the handling of cases and concerns raised about the team’s work. The claimant and her colleague also raised concerns about social work practice and potential safeguarding risks to children. The claimant relied on a series of communications between July 2021 and October 2022 as protected disclosures.
What were the alleged protected disclosures?
The claimant relied on 16 alleged protected disclosures. The Employment Tribunal considered each communication in its factual context and then assessed whether the disclosures it accepted had caused the detriments complained of.
The tribunal found that alleged disclosures 1, 3, 5 and 11 were protected disclosures. It rejected others, including some communications said to concern a possible miscarriage of justice in family court proceedings. It also found that certain communications attributed to the claimant and Dr McQueen were personal to Dr McQueen, rather than made jointly on their behalf.
The EAT rejected the challenge to the tribunal’s approach to the statutory tests. It was satisfied that the tribunal had understood the requirement that a worker must reasonably believe the disclosed information tends to show one of the matters listed in section 43B(1), even where the tribunal did not repeat the full test in every discussion of an individual disclosure.
How was “miscarriage of justice” interpreted?
A central issue was the meaning of “a miscarriage of justice” in section 43B(1)(c) of the Employment Rights Act 1996. The EAT noted that counsel had identified no appellate authority resolving the meaning of the expression in this whistleblowing context.
The Employment Tribunal had accepted that Parliament’s choice of the term “miscarriage of justice”, rather than less serious expressions such as an error of law, injustice or unfairness in legal proceedings, indicated a threshold of gravity. It described the necessary threshold as a “profound injustice or failure of the administration of justice”.
“The term as used in this section applies only to the justice system – that is to say the courts and tribunals.”
Judge Barklem agreed. He held that the expression carries a requirement of gravity or seriousness and does not encompass every perceived unfairness or error in legal proceedings. The EAT concluded that the tribunal had not added an impermissible gloss to the statutory wording; it had construed its legal meaning. Ground 1 of the appeal was dismissed.
The claimant also argued that the tribunal had applied too stringent a test to the disclosures and had failed to assess her reasonable belief correctly. The EAT read the decision fairly and as a whole and found that the tribunal had kept the correct statutory test in mind. It also held that the tribunal was entitled to reach its conclusions on the individual alleged disclosures. Grounds 2 and 3 therefore failed.
Why did the whistleblowing detriment appeal fail?
The claimant challenged several findings about alleged detriments, including the pause in referrals to the CAT, advice about where to raise further safeguarding concerns, the investigation into complaints about her and the handling of her own concerns.
On the pause in referrals, the EAT upheld the tribunal’s finding that the local authority had decided not to refer further cases to the CAT. The tribunal had found that the pause was not imposed because protected disclosures had been made, but because concerns and serious complaints involving the claimant and her colleague needed to be addressed before the local authority would use the service again. The EAT considered those factual findings were open to the tribunal.
Another ground concerned a manager’s advice that remaining safeguarding concerns should be raised outside the Trust. The EAT accepted that the tribunal’s reasons were not entirely clear, but read the decision as a whole and concluded that the tribunal had ultimately found that the advice reflected a request from the local authority, rather than the making of protected disclosures. In any event, any possible detriment was described as theoretical and de minimis, with no practical effect on the claimant.
The claimant also argued that the investigation into complaints about her had taken an inordinate length of time. The Employment Tribunal accepted that the delay and the fact of being under investigation amounted to a detriment. However, it found that the delay was explained by difficulties obtaining information and arranging interviews, the investigator’s workload, periods of sick leave and internal review processes. It found no evidence that the investigation had been delayed to punish the claimant for whistleblowing.
The EAT held that the relevant grounds largely sought to re-run factual arguments that had already been considered by the Employment Tribunal. The tribunal had made findings it was entitled to make on the evidence, including on the reasons for the investigation and the knowledge of the individuals involved. The detriment grounds were dismissed.
What did the EAT say about discrimination and harassment?
The final grounds concerned an investigatory meeting on 26 July 2022. The claimant said that the investigator, Mr Bayayi, had questioned her aggressively about her understanding of racism, repeatedly asking, “what do you think racism is”. She relied on the same alleged conduct for her direct race discrimination and harassment claims, as well as a whistleblowing detriment complaint.
The Employment Tribunal preferred Mr Bayayi’s contemporaneous notes of the meeting. It found that he had asked follow-up questions to clarify the claimant’s answers, but had not been aggressive or hostile. The tribunal considered the questions reasonable in the context of investigating a serious allegation of racism made by a service user.
It also found that Mr Bayayi would have treated a non-White person in the same way and that his intention was to investigate the allegations robustly. The direct race discrimination complaint therefore failed. The tribunal rejected the harassment complaint too, finding that the conduct alleged had not occurred and that the questions, even if unwanted and related to race, did not have the purpose or reasonably foreseeable effect required by section 26 of the Equality Act 2010.
The EAT held that the tribunal had made clear findings on what had happened, explained why it preferred the contemporaneous notes and addressed the investigator’s reasons for asking the questions. It found no error of law in the tribunal’s treatment of the discrimination or harassment claims. Grounds 9 and 10 were dismissed.
Frequently asked questions
What is the meaning of “miscarriage of justice” for whistleblowing claims?
The EAT held that the term in section 43B(1)(c) of the Employment Rights Act 1996 applies to the justice system, meaning courts and tribunals, and requires a profound injustice or failure of the administration of justice.
Did the claimant make any protected disclosures?
Yes. The Employment Tribunal found that alleged disclosures 1, 3, 5 and 11 were protected disclosures. However, it did not find that the alleged detriments were caused by those disclosures.
Why did the whistleblowing detriment claims fail?
The tribunal found that the relevant actions were taken for other reasons, including the need to address concerns and complaints raised about the CAT and the claimant. The EAT held that those findings were open to the tribunal on the evidence.
Were the race discrimination and harassment claims upheld?
No. The tribunal found that the investigator’s questions were not aggressive or hostile, that he would have treated a non-White person in the same way, and that the conduct did not amount to harassment related to race. The EAT upheld those conclusions.
What was the outcome of the appeal?
The EAT dismissed all 10 grounds of appeal, leaving the Employment Tribunal’s rejection of the claims undisturbed.