Mon, 12 Dec 2011
By Gemma Roberts
In NHS Manchester v Fecitt and ors  EWCA Civ, 1190, the Claimants worked in an NHS walk-in centre. They raised concerns about the qualifications and experience of a colleague, Mr Swift. It was not disputed that they had made protected, qualifying disclosures under s43A and s43B(d) ERA. Mr Swift subsequently accepted that he had exaggerated his qualifications to other staff members, but not to his employer; he apologised and no further action was taken.
The Claimants were not satisfied with the Respondent’s response and pursued the matter with more senior management. Other staff members considered that Mr Swift was the target of a witch hunt and the Claimants were subjected to certain hostile and unpleasant acts by some colleagues. The management were concerned about the dysfunctional effects upon the workplace and encouraged all staff to work together; however they made no attempt to identify the adverse behaviour or threaten disciplinary sanctions. The situation continued to deteriorate, eventually the Claimants were redeployed away from the centre.
The Employment Tribunal dismissed the Claimants’ claims. The Employment Appeal Tribunal  IRLR 111 held that the ET had erred in both the application of the test for determining whether the detriment suffered was because of the disclosure, and in failing to consider whether the Respondent was vicariously liable for the acts of its employees.
On the issue of whether the Trust could be liable for the acts of Fecitt’s colleagues, the Court of Appeal held that Cumbria County Council v Carlisle-Morgan was wrongly decided and that an employer cannot be vicariously liable for acts of victimisation against whisleblowers carried out by fellow employees. The whistleblowing provisions only prohibit acts or deliberate omissions by the employer, there is no protection afforded from acts of victimisation by fellow workers. Applying Majrowski v Guys and St Thomas’ NHS Employer properly, an employer can only be liable for the legal wrongs of its employees; absent any legal wrong, there is no room for the doctrine to operate.
On the issue of management’s liability, the Court of Appeal reasserted that it was not sufficient to find liability merely because the management did not do all they could, or were ineffective in preventing victimisation of the whistleblower. It had to be shown that the failings were a deliberate failure to act. Further, the proper test is whether the decision to so act was materially (ie more than trivially) influenced by the proscribed reason.
It had been contended that the correct test was whether the whistleblowing was the “sole or principle reason” for the detriment, in accordance with the test in s103A ERA applicable to dismissal scenarios. It was contended that it would be curious if the test for the most extreme form of victimisation, dismissal, is stricter than for detriment short of dismissal. Further, the causation test applicable in discrimination cases arises because of the need to read such legislation compatibly with EU law. There was no need to read the whistleblowing legislation compatibly with EU law as it is ‘home grown’
The Court of the Appeal held that liability arises if the disclosure is a material factor in the decision to subject the Claimant to detriment. Although an Igen v Wong causation principal does not strictly have to be followed, the principle is equally applicable as the objective is to protect whistleblowers. There is an anomaly in that for an automatic unfair dismissal to arise, the disclosure must be the sole or principal reason however the anomaly is simply the result of placing the whistleblowing protection into the general run of unfair dismissal law. In the present case, the reason for the redeployment of the whistleblowers was not disclosures, but the dysfunction that has arisen within the workplace.