Fecitt and ors v NHS Manchester
Under section 47B of the 1996 Employment Rights Act (ERA), workers have the right not to be subjected to a “detriment” “on the ground that” they made a protected disclosure. In Fecitt and ors v NHS Manchester, the Employment Appeal Tribunal (EAT) said that the burden is on employers to prove that, if they subject a worker to a detriment, it was “in no sense whatsoever” on the ground that they had made a disclosure.
Basic facts
Ms Fecitt was a clinical nurse co-ordinator for a number of walk-in centres, principally the one at Wythenshawe, where Ms Woodcock, the second claimant also worked. Ms Hughes, the third claimant was a bank nurse who spent most of her time at Wythenshawe.
In early 2008, Mr Swift, a general nurse employed at the Wythenshawe walk-in-centre, boasted to Ms Woodcock that he had a dual qualification as a children’s nurse and an adult nurse. Ms Woodcock did not believe him and told Ms Fecitt. Ms Fecitt looked into the matter and discovered that Mr Swift was only qualified as a children’s nurse.
Ms Fecitt, supported by Ms Woodcock and Ms Hughes, passed on their concerns (and thereby made protected disclosures) to Ms Fecitt’s line manager that Mr Swift might be putting patients at risk. The manager investigated, but found that as Mr Swift had not exaggerated his experience or qualifications to the Trust, no further action was required.
However, the three claimants were not satisfied. They continued to pursue the matter to the point whereby staff at the walk-in centre became completely divided. Things continued to deteriorate to the point whereby Ms Fecitt even received anonymous calls threatening to burn down her home.
The claimants, complained to management about the unpleasant behaviour of some of their colleagues. After an independent investigation which partly upheld Ms Hughes’ complaints, Ms Fecitt and Ms Woodcock were redeployed and Ms Hughes was not given any more work.
Amongst other things, all three women lodged claims that they had suffered a detriment as a result of making a protected disclosure within the meaning of section 47B ERA. This states that “A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure."
Tribunal decision
Although the tribunal agreed that the claimants had suffered less favourable treatment at the walk-in-centre, it made no finding on precisely what the less favourable treatment was nor whether the Trust was vicariously liable for it.
It also held that when considering if the less favourable treatment was on the grounds of the protected disclosures made by the claimants, there must be a causal connection between the protected act (the disclosure) and the employer’s acts or failure to act.
In this case, it said that any failure on the part of the Trust to take sufficient steps to protect the three women from being subjected to a detriment was not because they had made protected disclosures about a colleague and therefore was not "on the ground that" they had made a disclosure.
Instead, it said that the decision to redeploy Ms Fecitt and Ms Woodcock and to remove Ms Hughes was the only way to resolve the problems in the walk-in centre.
EAT decision
The EAT held that the tribunal should have addressed the issue of vicarious liability properly. It needed to make specific findings on whether the actions of other employees against the claimants were on the grounds that they had made protected disclosures and if they were, what those acts were; who were the perpetrators; whether the actions amounted to a detriment for the purposes of section 47B and finally whether the acts were so closely connected with the employment of those responsible to make the Trust vicariously liable.
On the issue of causation the EAT disagreed with the test that the tribunal used, which looked at whether the protected act had to be a direct and proximate cause of the detriment. Instead the EAT held that once less favourable treatment amounting to a detriment has been shown, the burden was then on the Trust to prove that the treatment “was in no sense whatever on the ground of the protected act”.
The case was remitted back to the employment tribunal to reconsider its findings.