In NHS Manchester v Fecitt and ors the Court of Appeal decided that the EAT was wrong to hold an employer vicariously liable for its employees victimising a whistleblower. The House of Lords has made clear that an employer can only be vicariously liable for the legal wrongs of its employees. As there is no provision making employees personally liable for victimising whistleblowers, the claim could not succeed. The Court also gave the obiter view that, for the purpose of deciding whether a worker has been subjected to a detriment for having made a protected disclosure, the test of causation is whether the disclosure materially influenced the employer’s actions.
F, who had responsibility for staff at a NHS centre, told her line manager, C, that a colleague, S, did not have the qualifications he claimed to have. S apologised and said the lies would not be repeated – C was prepared to leave it at that. F sought to pursue the matter further, leading to some colleagues siding with S and acting in a hostile way towards F, taking the view that she had subjected S to a ‘witch hunt’. The workplace became ‘dysfunctional’ but senior management made no real attempt to stop the situation escalating. F lodged a grievance and was eventually redeployed, while a bank nurse who supported her was no longer offered shifts. At an employment tribunal they claimed that both the redeployment and failure to prevent victimisation breached their right in S.47B of the Employment Rights Act 1996 not to be subjected to any detriment by any act or omission on the ground of having made a protected disclosure. They also claimed that NHS Manchester was vicariously liable for their victimisation by their co-workers.
It was not disputed that the disclosure was a protected disclosure as defined by S. 43A ERA. Applying the ‘reason why’ approach to causation, the tribunal found that the NHS’s failure to prevent F’s harassment by other staff did not amount to a deliberate failure to act so as to come within S.47B. Further, F’s redeployment was not because she had made a protected disclosure but to resolve the ‘dysfunctional’ situation at the centre. The tribunal failed to consider vicarious liability. F appealed.
Allowing the appeal, the EAT held that the tribunal had adopted the wrong standard of proof in relation to causation. An employer must show that the treatment was ‘in no sense whatsoever’ on the ground of a protected disclosure. Although protection of whistleblowers is a creation of domestic law, the EAT felt obliged to follow the Court of Appeal’s decision in Igen v Wong setting down the correct test in relation to EU discrimination law. On the basis of its earlier decision in Cumbria County Council v Carlisle-Morgan the EAT also held that the NHS was vicariously liable for victimisation of the claimants by their co-workers, even though the colleagues themselves were not personally liable under the ERA. The case was remitted for the tribunal to consider the burden of proof. NHS Manchester appealed.
The Court of Appeal allowed the appeal. The EAT was wrong to hold NHS Manchester vicariously liable for victimisation by its employees – the EAT’s decision in Carlisle-Morgan had been wrongly decided. The House of Lords in Majrowski v Guy’s and St Thomas’ NHS Hospital Trust was quite clear that an employer can only be vicariously liable for the legal wrongs of its employees. As there is no provision making it unlawful for co-workers to victimise whistleblowers, the claim could not succeed. Further, there was no need to remit the case in relation to the burden of proof. The tribunal had given sufficient reasons for finding no causal connection between the protected disclosure and the employer’s impugned actions. There was nothing in the tribunal’s decision inconsistent with the standard of proof required by the EAT.
Although the Court of Appeal did not have to decide whether the EAT applied the proper test of causation, it rejected the argument that the EAT was wrong to draw an analogy between whistleblowing legislation and legislation giving effect to EU law. It considered that the principle that discriminatory considerations should not have any influence on an employer’s decisions is equally applicable where the objective is to protect whistleblowers. It also refused to accept that the test should be aligned with that for unfair dismissal, i.e. where the protected disclosure is the employer’s sole or principal reason for acting. In the Court’s view, S.47B will be infringed if the protected disclosure materially influences (in the sense of being more than a trivial influence) the employer’s treatment of the whistleblower.
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