The Court of Appeal has issued an important judgment on the subject of vicarious liability in whistle-blowing cases that result in accusations of victimisation.
The ruling, which was handed down on Tuesday 25 October in the case of NHS Manchester v Fecitt and others [2011] EWCA Civ 1190, has led to calls for the Public Interest Disclosure Act 1998 (it protects individuals who blow the whistle) to be amended.
The facts
Mrs Fecitt and her two colleagues, Mrs Woodcock and Mrs Hughes, who were nurses working at an NHS Walk-In Centre in Manchester, were concerned that their colleague, Mr Swift, was making false statements about his clinical experience and qualifications. Mrs Fecitt expressed their worries to her line manager.
Mr Swift apologised over the fact that he had exaggerated his qualifications and NHS Manchester was prepared to "leave it at that". But the three nurses sought to pursue the matter and a rift developed in the workforce as colleagues took sides. Those supporting Mr Swift felt that he was being subjected to a "witch hunt".
But subsequently, the nurses also found themselves experiencing unpleasant behaviour. In particular, Mrs Fecitt received a threat that her house would be burned down if she did not withdraw her complaint about Mr Swift.
As the workplace atmosphere continued to deteriorate, Mrs Fecitt and Mrs Woodcock were removed from the Walk-In Centre and redeployed elsewhere. Mrs Hughes, a bank nurse, was not offered any more shifts.
At an employment tribunal, the nurses claimed that both the redeployment action and their employer’s failure to prevent victimising behaviour breached their right not to be subjected to any detriment by any act or omission on the grounds of having made a protected disclosure. They also claimed that NHS Manchester was vicariously liable for their victimisation by co-workers.
The employment tribunal decision
There was no dispute over whether the nurses had made protected disclosures. They also made qualifying disclosures because they reasonably believed that the health and safety of individuals was shown to have been, or was likely to be, endangered because of the situation, and these points were made in good faith to their employer.
The Tribunal found that their employer had subjected the nurses to detrimental treatment, not on the grounds of making protected disclosures, but rather in attempting to resolve the dysfunctional situation in the workplace. The Tribunal did not make a finding on vicarious liability so the nurses appealed to the Employment Appeals Tribunal.
The employment appeal tribunal decision
The EAT upheld the nurses’ appeal. It found that the Employment Tribunal had not required the correct standard of proof in order to determine whether protected disclosure had been the reason behind their detrimental treatment, thus giving rising to liability.
The EAT ruled that NHS Manchester had to satisfy the Tribunal that the adverse treatment experienced by the nurses was "in no sense whatsoever" because of their protected disclosures. In relation to the question of vicarious liability, the EAT also held that the employer would be vicariously liable for acts of victimisation by fellow employees.
NHS Manchester subsequently went to the Court of Appeal.
The court of appeal decision
The Court of Appeal upheld NHS Manchester’s appeal and rejected the nurses’ complaints. It found no reason to go behind the Employment Tribunal’s finding of fact, namely that NHS Manchester had redeployed two of its nurses because managers believed it was the only feasible way of dealing with the existing dysfunction in the workplace.
While NHS Manchester was criticised for not protecting the nurses more than it did, its failure to act more robustly was ruled not to be a deliberate omission and not to be because the nurses had made protected disclosures.
It was clear that the Employment Tribunal had been satisfied that the reasons given by NHS Manchester for acting as it did were genuine and that the relevant burden had been discharged in this case, the Court of Appeal said. In its view, the employer would be liable if the protected disclosure materially – rather than trivially – influenced their treatment of the whistleblower.
In terms of vicarious liability, it was found that the EAT had been wrong to say employers could be vicariously liable for acts of victimisation by its employees. The Court of Appeal referred to the House of Lords’ decision on vicarious liability in Majrowski v Guy’s and St Thomas’ NHS Trust [2006] UKHL 34, which held that an employer can only be held liable for the legal wrongs of its employees.
It was accepted that there may be circumstances where employees might commit other wrongs for which their employer could be vicariously liable (eg conduct giving rise to liability under the Protection from Harassment Act 1997), but no such wrongs took place in this instance.
Opinions
Whistle blowing charity Public Concern at Work, which was involved in this case, raised concerns that the decision meant employers that failed to do enough to protect staff from retaliation could hide behind their own inaction and escape liability. The organisation also worried that the ruling could make workers reluctant to make a disclosure for fear of reprisals.
Under whistle-blowing legislation, it also seems easier for workers to succeed with a detriment rather than an automatic unfair dismissal claim. The former will succeed if a protected disclosure has more than trivially influenced the detriment. But an automatic unfair dismissal claim will only succeed where protected disclosure is the employer’s reason or principal reason for dismissing someone.
As a result of this decision, there have been calls for the Public Interest Disclosure Act 1998 to be amended. We will keep you informed of any developments.
Emma Doble is an associate and Karen Plumbley-Jones a practice development lawyer at business law firm, Bond Pearce LLP.
