Labour & European Law Review Weekly Issue 249 22 December 2011
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 Court of Appeal said that the test to establish whether the protected disclosures had led to the detriment was whether they were a “material factor” in how the employer had treated their employees.
Ms Fecitt, along with two nurse colleagues at a walk-in centre, complained to a manager that another nurse, Mr Swift, had misrepresented his qualifications to other members of staff and 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 continued to pursue the matter until staff at the walk-in centre became completely divided and dysfunctional. 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 the complaints, Ms Fecitt and another of the complainants were redeployed and a third nurse, who worked on the bank, was not given any more work at the centre.
The 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."
They also claimed that their employer was vicariously liable for the actions of their co-workers which amounted to victimisation.
Tribunal and EAT decisions
Although the Tribunal agreed that the claimants had suffered less favourable treatment, it said there must be a causal connection between the protected act (the disclosure) and the employer’s acts or failure to act for the legislation to bite.
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 and therefore was not "on the ground that" they had made a disclosure. Instead, it found that the decision to redeploy two of the nurses and to remove the third was the only way to resolve the problems at the centre.
The EAT disagreed with the test that the Tribunal used, holding that once less favourable treatment amounting to a detriment has been shown, the burden was then on the employer to prove that the treatment “was in no sense whatever on the ground of the protected act”.
It also found that NHS Manchester was vicariously liable for the actions of the nurses’ co-workers.
Court of Appeal decision
Overturning the decision of the EAT, the Court of Appeal agreed with the Tribunal that the correct test was whether the protected disclosures were a “material factor” in how the employer had treated the nurses.
It also agreed with the finding by the Tribunal that removing the nurses from the centre was not because they had made protected disclosures, but because it seemed to be the only feasible method of dealing with a dysfunctional situation.
Relying on the House of Lords decision in Majrowski v Guy's and St Thomas' NHS Hospital Trust, the Court of Appeal rejected the EAT’s findings that NHS Manchester could be vicariously liable for victimisation by its employees.
As there is no law against victimisation of “whistleblowers” by employees, the employer could not be vicariously liable. Employers can only be vicariously liable for the legal wrongs of their employees.