NHS Manchester v Fecitt & others
Whistleblowing claims can alarm employers. The prospect of uncapped compensation and being accused of retaliatory conduct is unappealing. It is therefore good news to report that in NHS Manchester v Fecitt & others  EWCA Civ 1190 the Court of Appeal has set out clearly the appropriate tests for liability in these cases.
A number of nurses at a Walk-In Centre complained to management about the conduct of a colleague who was exaggerating his qualifications. The way they did this and continued to complain resulted in a backlash from other colleagues who feared a witchhunt. Management (in the opinion of the tribunal) did not handle the situation well and eventually two nurses were moved to different establishments and a third, who was a bank nurse, was no longer offered shifts. The nurses brought claims under s47B Employment Rights Act 1996 claiming that they had suffered detriment because they had made protected disclosures.
At the tribunal the employer succeeded but on appeal the Employment Appeal Tribunal (EAT) sent the case back to the tribunal because they felt that the tribunal had not identified the appropriate standard of proof in these cases. They said what was required to let the employer off was a finding that the disclosures ‘in no sense whatsoever’ played any part in the detriment suffered by the nurses. This was to apply the same test as operates in cases of discrimination, where the law originates in European directives, even though the law on whistleblowing is homegrown. Secondly the EAT held that there could be vicarious liability by employers arising from misconduct of their employees even if the employees were not personally liable. Vicarious liability is the rule that makes employers liable for the wrongdoing of its employees.
The Court of Appeal disposed of both points fairly robustly. Under s47B the only liable person is an employer. However badly employees treat their colleagues as a result of a protected disclosure no liability can arise for them under s47B. In these circumstances the position is governed by a decision of the House of Lords that decided that vicarious liability only applies for the wrong doing of its employees.
On the appropriate test for liability the Court of Appeal agreed with the employer’s submission that the tribunal had found that the real reason the detrimental actions had taken place was not the protected disclosures at all but the dysfunctional nature of the workplace caused by the conduct of all employees. That answered the basic question, which is whether the nurses had been subjected to detriment on the ground of the protected disclosures. As the tribunal had found it had not that was an end of the case.
The Court of Appeal also decided that, if the protected disclosure had been one of the reasons for the detriment, the appropriate test depended on whether the detriment was dismissal or something else.
In dismissal cases the test is that the protected disclosure has to be the sole or principal reason for the detriment because that is what statute provides. In other cases it has to be determined whether the disclosure was a material factor. If so then liability arises. In this context material only means more than minor or trivial.
Many will find it curious that the test for the lesser form of victimisation is tougher than that for dismissal, the most severe sanction. That is because it is decidedly odd. At least however some clarity has been provided about the way in which the key issue in these cases should be decided.
First published in The Grapevine Magazine November 2011
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