NHS Manchester v Fecitt & Ors

Factual and Procedural Background

After a 12-day hearing in the Employment Tribunal in The City in 2009, the Tribunal held that the claimants, registered nurses working at a Walk-In Centre, had not been unlawfully victimised by their employer, Company A, contrary to section 47B of the Employment Rights Act 1996 for making protected disclosures. The claimants appealed successfully to the Employment Appeal Tribunal ("EAT") on two grounds: first, that the Tribunal had not applied the correct test to determine if detriments suffered were because of the protected disclosures; second, that the Tribunal failed to consider whether the employer was vicariously liable for victimisation by its employees. The matter was remitted to the Employment Tribunal for reconsideration. Company A now appeals against the EAT judgment seeking reinstatement of the original Tribunal order.

The claimants made protected disclosures about a colleague's false statements regarding clinical qualifications, which were made in good faith and related to health and safety concerns. Following these disclosures, the claimants faced hostile acts from colleagues supportive of the accused employee, including threats and social ostracism. Management's response was deemed inadequate to prevent this hostile environment, and two claimants were redeployed while the third had shifts withdrawn. The claimants alleged these actions and the failure to prevent victimisation breached their rights under section 47B.

Legal Issues Presented

1. What is the appropriate causation test to determine whether detriments suffered were "on the ground that" the claimants made protected disclosures under section 47B?
2. Whether an employer can be held vicariously liable for acts of victimisation committed by employees who themselves are not legally liable under the whistleblowing legislation.
3. Whether the Employment Tribunal erred in its application of the burden and standard of proof concerning employer liability for victimisation.

Arguments of the Parties

Appellant's Arguments

• The EAT erred in law by holding that the employer could be vicariously liable for acts of victimisation by employees who committed no legal wrong, contrary to established common law principles as set out in Majrowski v Guy's and St Thomas' NHS Employer.
• The proper causation test is that the protected disclosure must be the sole or principal reason for the detriment, analogous to unfair dismissal law, rather than the broader "in no sense whatsoever" test applied by the EAT.
• The Tribunal properly found that the employer acted for genuine reasons unrelated to the protected disclosures, such as resolving a dysfunctional workplace situation.
• The EAT was wrong to impose a stricter standard of proof derived from discrimination law and EU directives, which do not apply to whistleblowing legislation.

Respondents' Arguments

• The Tribunal should have found that the treatment of the claimants was because of the protected disclosures, as they made proper disclosures in the public interest and were victimised unjustly.
• The employer’s failure to prevent victimisation by colleagues constituted unlawful victimisation.
• The employer should be vicariously liable for acts of victimisation by employees, to provide effective protection for whistleblowers and uphold the public interest.
• Suggested that section 47B should be interpreted or extended to impose liability on the employer for failure to protect whistleblowers from co-worker victimisation.

Interveners' Arguments (Public Concern at Work)

• Highlighted common issues where whistleblowers face victimisation and inadequate employer responses.
• Argued that legislation should protect whistleblowers fully, including from harassment by fellow workers.
• Proposed legislative interpretation to impose broader employer liability to secure public interest and effective whistleblower protection.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court examined the statutory framework of the Public Interest Disclosure Act 1998 and section 47B of the Employment Rights Act 1996, emphasizing that protection is afforded to workers against detriments imposed by their employer "on the ground that" a protected disclosure was made. The Court confirmed that the correct causation test requires the protected disclosure to be a material factor influencing the employer's detrimental acts, consistent with the "reason why" approach established in discrimination law.

The Court rejected the EAT’s application of the stricter "in no sense whatsoever" test derived from EU discrimination law, holding that whistleblowing legislation should be interpreted according to its domestic context, and that requiring the protected disclosure to be the sole or principal reason for detriment (as in unfair dismissal) does not apply to detriments short of dismissal.

Regarding vicarious liability, the Court found that an employer can only be vicariously liable for legal wrongs committed by employees. Since the whistleblowing legislation does not impose personal liability on employees for victimisation acts, the employer cannot be vicariously liable for those acts. The Court held that the EAT erred in following the earlier Cumbria decision and remitting the vicarious liability issue.

The Court carefully reviewed the Employment Tribunal's factual findings, which concluded that the employer acted to resolve a dysfunctional workplace situation and that the protected disclosures did not materially influence the adverse treatment. The Court found no basis to overturn these findings, which were properly open to the Tribunal.

The Court also considered submissions advocating a broader interpretation of employer liability to protect whistleblowers fully, including from co-worker victimisation. It rejected these, emphasizing that such an extension would rewrite the statute and that any remedy for perceived gaps in protection lies with Parliament.

Finally, the Court noted that while the Tribunal’s reasons were clear and legally sound, a fuller explanation regarding the nature of adverse treatment and the employer’s rationale for redeployment would have been helpful for appellate review and the claimants’ understanding.

Holding and Implications

The appeal is allowed and the finding of the Employment Tribunal that there was no breach of section 47B of the Employment Rights Act 1996 is restored.

The direct effect is that the claimants’ victimisation claims under section 47B fail, both on the employer’s personal liability and on vicarious liability grounds. The Court clarifies the appropriate causation test for victimisation claims and confirms that vicarious liability does not extend to acts of victimisation by employees who are not themselves legally liable under the whistleblowing legislation.

No new precedent is set beyond clarifying these points of law, and the Court emphasizes that any extension of protection for whistleblowers beyond the current statutory framework must be enacted by Parliament.