The UK Court of Appeal has ruled, in the case of NHS Manchester v Fecitt & Others, that an employer cannot be vicariously liable for acts of victimisation by its employees against whistleblowers. The Court also clarified the correct test for determining whether a worker has suffered a detriment on the ground of making a protected disclosure (ie. whistleblowing). The Court decided that to avoid liability under the whistleblowing legislation, the employer must show that the employee’s protected disclosure did not materially influence (i.e. more than trivially influence) the employer’s treatment of that employee.
The whistleblowing legislation provides protection in two ways. First, dismissal of an employee is automatically unfair if the principal reason for dismissal is that they have made a protected disclosure. Second, workers have a right not to be subjected to a detriment by their employer on the ground that they have made a protected disclosure. This case concerned the second of these protections.
What happened in this case?
Mrs Fecitt and two of her colleagues raised complaints with Mrs Fecitt’s manager about a fellow employee, Mr Swift. They suggested that Mr Swift had been misrepresenting his professional qualifications to other members of staff at an NHS Walk-In Centre in Manchester. The complaints amounted to protected disclosures falling within the scope of the whistleblowing legislation. Mr Swift admitted that he had misrepresented his qualifications to his colleagues and apologised. As Mr Swift had not misrepresented his qualifications to the employer and had given assurances that he would not repeat his behaviour, Mrs Fecitt’s manager decided to take no action. Mrs Fecitt and her colleagues were not happy with the outcome and persisted with their complaint to successively more senior levels of management.
Relations within the Walk-In Centre deteriorated, with some members of staff siding with Mrs Fecitt and her colleagues and others siding with Mr Swift. Mrs Fecitt and her colleagues alleged that, as a result of raising their complaint about Mr Swift, they had been subjected to isolation and daily personal insults at work. Mrs Fecitt also alleged that she had received an anonymous telephone call in which the caller had threatened to burn down her house unless she withdrew her complaint against Mr Swift and a photograph of Mrs Fecitt has been displayed on Facebook which had caused her distress.
Management attempted to encourage the employees at the Walk-In Centre to work together, but without success. Eventually, Mrs Fecitt and a colleague were relocated while another colleague was no longer offered shifts at the Walk-In Centre, as management believed this was the only way to resolve the conflict at the site.
Mrs Fecitt and her colleagues complained to an Employment Tribunal that they had been subjected to a detriment on the ground of having made a protected disclosure.
The Employment Tribunal rejected the Claimants’ complaints. It accepted that the Claimants had made protected disclosures and had been subjected to a detriment by their colleagues. However, it did not consider that the actions of NHS Manchester or its failure to act constituted a detriment on the ground that the Claimants had made a protected disclosure.
The Claimants alleged that management had failed to take proper steps to prevent victimisation, but the Tribunal disagreed, saying that a reasonable amount of pro-active engagement by NHS Manchester with a view to preventing such a situation continuing was required and NHS Manchester had provided that. The Tribunal said that although the employer was open to criticism for not protecting the Claimants more effectively than they did, their failure to act more robustly was not deliberate and was not because of the protected disclosure that had been made.
As regards the redeployment/ceasing to provide shifts, the Tribunal said that NHS Manchester acted in the way that it did because it appeared to management to be the only feasible method of resolving the breakdown in the working relationships in the Walk-In Centre. The employer had not acted in the way that it did on the ground that the employees had made protected disclosures.
The Employment Appeal Tribunal (“EAT”) overturned the Tribunal’s findings. The EAT said that, in order to escape liability, NHS Manchester would need to show that their actions/alleged failures to act were “in no sense whatsoever” on the ground that the Claimants had made a protected disclosure. As the Employment Tribunal had not applied the correct test, the matter was sent back to the Tribunal to make a determination using that test. Additionally, the EAT found that NHS Manchester was vicariously liable for the victimisation carried out by its employees against the Claimants.
On appeal, the Court of Appeal restored the Tribunal’s decision.
In relation to the allegations regarding redeployment/ceasing to provide shifts and failure to act to prevent the victimisation and whether these actions/failures were “on the ground” that the Claimants had made a protected disclosure, the Court of Appeal held that the Tribunal had applied the right test. The Tribunal was clearly satisfied that the reasons given by NHS Manchester for doing what it did were genuine, and the fact that the Claimants had made protected disclosures had no influence on its decisions. It agreed with the Tribunal’s reasoning and ruled that the proper test was whether NHS Manchester had shown that the Claimants’ protected disclosures had not “materially influenced” (in the sense of being more than influenced to a trivial extent) the employer’s treatment of them.
The Court of Appeal also overturned the EAT’s decision on vicarious liability. It found that because there is no provision making it unlawful for employees to victimise whistleblowers, then since the employees who had allegedly victimised the Claimants could not themselves be personally liable under the whistleblowing legislation, NHS Manchester could not be vicariously liable for their conduct.
What does this case mean for employers?
It will be welcome news to employers that they cannot be held to be vicariously liable for their employees’ acts of victimisation against whistleblowers. However, this does not mean that employers can get away with turning a blind eye to this type of situation. While an employer may not be vicariously liable for its employees’ acts of victimisation against whistleblowers, it can be vicariously liable under other legislation such as the Protection from Harassment Act. Furthermore, an employer that does not do enough to prevent an employee being victimised by other employees for blowing the whistle can itself be liable if its failure to act can be shown to be on the ground that the employee has made a protected disclosure. In this case, the Tribunal considered that the NHS Manchester had done enough. If, however, the fellow employees who victimised Mrs Fecitt had been individuals to whom she had directly or indirectly reported, the outcome could have been different, as their actions in that event could have been held to be actions of the employer itself. Also, a further point is that an employee who feels sufficiently aggrieved by an employer’s actions in a whistleblowing situation may argue that the employer has acted to destroy the relationship of trust and confidence and bring a claim for constructive unfair dismissal.
Public Concern at Work, the whistleblowing charity has now called for a Government review of the legislation to ensure that whistleblowers are protected in situations such as those which arose in this case. It is concerned that if an employer does not do enough to protect staff from retaliation, then workers may stay silent rather than blowing the whistle in the public interest. In the NHS, where this has been a particular problem of late, the Department of Health has announced changes for early 2012 to ensure that NHS staff will receive greater support if they raise concerns.