Under Section 47B of the Employment Rights Act 1996 (ERA), a worker has the right not to be subjected to unwanted treatment amounting to a detriment because he or she has made a protected disclosure. In NHS Manchester v Fecitt and others, the Court of Appeal has provided guidance on the correct approach to causation in claims of victimisation in whistleblowing cases and has clarified the position regarding an employer’s vicarious liability for acts of victimisation perpetrated by fellow employees against the whistleblowers.
The three claimants were all registered nurses who worked at an NHS walk-in centre in Manchester. They raised concerns that a male colleague had boasted of having qualifications and clinical experience that he did not in fact possess. It was accepted that protected disclosures had been made because the claimants believed that the health and safety of patients was at risk.
In the event, no action was taken because the man had not made any false claims to his employer, NHS Manchester. Unhappy with this outcome, the three women continued to pursue the matter, with the result that relations between staff at the centre deteriorated significantly. The women were subjected to unpleasant behaviour by other staff and one of them received an anonymous death threat. An internal review supported NHS Manchester’s decision not to take further action but criticised the management for not being sufficiently robust.
Subsequently, NHS Manchester dealt with the situation by redeploying two of the women elsewhere and the third, a bank nurse, was not given any further work.
The women claimed that they had suffered a detriment as a result of having made protected disclosures, and that NHS Manchester had failed to take proper steps to prevent the acts of victimisation carried out by other workers and was also vicariously liable for those acts.
On the issue of causation, 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) had been satisfied that there was no causal connection between the protected disclosures and the employer’s acts or omissions. Whilst NHS Manchester was open to criticism for not protecting the women more effectively, the failure to take more robust action was not a deliberate omission and was not because they had made the protected disclosures. Furthermore, whilst its response in redeploying two of the women and providing no work for the third was evidence from which an inference of victimisation could easily be drawn, the ET had been satisfied that the reason for this was genuinely 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 and, in contrast to discrimination legislation, there is no provision in Section 47B making it unlawful for workers to victimise whistleblowers. Whilst workers can be found to have committed wrongs for which the employer could be vicariously liable – for example treatment that constituted harassment under the Protection from Harassment Act 1997 – that was not in point in this case.
Says <<CONTACT DETAILS>>, “Conflicts such as this can be extremely difficult to resolve. Complaints of victimisation should be investigated thoroughly and use made of disciplinary sanctions where necessary to stop the situation escalating. Where action is taken that constitutes detrimental treatment of a member of staff who has made a protected disclosure, there must be a genuine explanation as to why this is necessary. For step-by step advice when working to resolve a conflict in the workplace, contact us.”