Whistleblowing - causation and vicarious liability
Posted: 10th November 2011
In NHS Manchester v Fecitt and others, the Court of Appeal has provided useful guidance on the correct approach to causation in claims of victimisation in whistleblowing cases and has also clarified the position regarding an employer’s vicarious liability for acts of victimisation perpetrated by fellow employees against the whistleblowers.
The case concerned three registered nurses who had blown the whistle on a co-worker after they discovered that he had boasted of having qualifications and experience that he did not have. It was accepted that protected disclosures had been made because the women believed that the health and safety of patients could be at risk.
Because no false claims had been made to his employer, however, no action was taken against their co-worker. The women were unsatisfied with this outcome and took the matter further. This caused a split in the workforce and the whistleblowers were subjected to unpleasant treatment by staff who opposed their actions. Relations deteriorated to such an extent that NHS Manchester subsequently redeployed the women who had made the disclosures.
In deciding whether the women had suffered a detriment on account of having made protected disclosures, the Court of Appeal held that liability arises if the protected disclosure is a material factor (in the sense of being more than a trivial influence) in the employer’s treatment of the whistleblower.
On the facts in this case, the Employment Tribunal (ET) was satisfied that there was no causal connection between the protected disclosures and the employer’s acts or omissions to act. Whilst NHS Manchester could be criticised for not protecting the women more effectively than it did, its failure to take more robust action was not a deliberate omission and was not because they had made the disclosures. Whilst redeploying them was evidence from which an inference of victimisation could easily be drawn, the ET was satisfied that this was a genuine attempt on the part of the employer to remedy a dysfunctional situation.
On the issue of vicarious liability, in whistleblowing cases an employer can be vicariously liable only for the legal wrongs of its employees. Unlike discrimination legislation, there is no provision under Section 47B of the Employment Rights Act 1996 making it unlawful for workers to victimise whistleblowers. Although workers might be found to have committed wrongs for which the employer could be vicariously liable – for example treatment that would constitute harassment under the Protection from Harassment Act 1997 – that was not the case here.