Weekly Employment Update - 2nd November 2011

This week, we look at "whistleblowing" cases, and whether an employer can be held legally responsible for its employees' actions where a colleague is a "whistleblower".   

Under the law, whistleblowing workers can bring a claim against their employer if they have been treated badly because they have made what is called a "protected disclosure" (which essentially means that they have formally reported some form of wrongdoing in the workplace).

Previous case law has established that the disclosure must be "the real or core reason" for the detrimental treatment by the employer if such a claim is to succeed.

In the recent case of NHS Manchester v Fecitt, the three Claimants, who were registered nurses at a walk in centre in Manchester, had expressed concerns to their Line Manager about another colleague having lied about their clinical qualifications.

Staff relations deteriorated, and the Claimants were subjected to unpleasant behaviour by other members of staff.  Ultimately, one of the Claimants was removed from her managerial responsibilities and, along with another of the Claimants, was re-deployed away from NHS Manchester.  The third Claimant was not given any more work from the NHS Manchester.

They brought a claim under the whistleblowing legislation against their employer. They also argued that NHS Manchester, as the employer, should be liable for the unpleasant behaviour of the other members of staff which they argued also related to the protected disclosure they had made.

The Employment Tribunal held that the detriment the Claimants had suffered was not "on the grounds" that they had made a protected disclosure, but that NHS Manchester's actions were the "only feasible way of resolving" the dysfunctional state of the walk-in centre.

The Employment Tribunal made no finding on whether the NHS Manchester was vicariously liable for the behaviour of the other employees.

The Claimants appealed the decision, and the Employment Appeal Tribunal said that, to avoid liability in a whistleblowing case, the employer would have to show that the protected disclosure did not materially influence (that is, more than trivially influence) the alleged detrimental treatment.

The EAT also said that an employer can be liable where its employees subject other employees to a detriment on the grounds that they have made protected disclosures.

NHS Manchester then appealed that decision to the Court of Appeal. The Court of Appeal held that the reality of the situation was that it was the dysfunctional situation in the workplace, and not the protected disclosure, which was the grounds for the behaviour of the other members of staff.

The Court of Appeal also held that an employer could not be vicariously liable for their employees under whistleblowing legislation. This is because an employer can only be vicariously liable for the legal wrongs of their employees, but there is no provision in the whistleblowing legislation which makes it unlawful for employees to victimise whistleblowers.

The Court of Appeal accepted that whistleblowers should perhaps have protection from victimisation by colleagues, but said that it was beyond their role in interpreting legislation to make employers liable for the detriment caused by employees to their whistleblowing colleagues.  This, they said, was the responsibility of Parliament.

The Court of Appeal reinstated the Employment Tribunal's decision, and upheld NHS Manchester's appeal.  It also stated that there was nothing in the Employment Tribunal's judgement which was inconsistent with the causation test set out by the EAT.

Ashfords LLP is Authorised and Regulated by the Solicitors Regulation Authority. The information in this note is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances.