In NHS Manchester –v- Fecitt & Ors [EWCA
Civ 1190] the Court of Appeal has stated that an employer cannot be
held vicariously liable for acts of victimisation of its employees
in cases of whistleblowing. This is on the basis that unlike
discrimination legislation, where employees can be held personally
liable for their acts of victimisation against an employee pursuing
a discrimination claim, no such liability exists for employees in
relation to whistleblowing claims. The Court of Appeal has
also provided useful clarification on the issue of causation when
considering claims by employees that they have been subjected to a
detriment by their employer for making a protected
disclosure.
The case related to a number of nurses who had raised concerns
about a colleague which constituted a protected disclosure.
As a result the nurses were subjected to hostile acts by their
colleagues, and in response to the negative impact on the working
environment the Trust redeployed the nurses from their place of
work. The nurses in question then claimed against the
Trust on the basis that it had breached section 47B of the
Employment Rights Act 1996 in that (i) it was vicariously liable
for their victimisation by their colleagues, and (ii) that by
failing to prevent victimisation it had breached their right not to
be subjected to detriment for making a protected disclosure.
In respect of the first element, the Court of Appeal, upheld the
House of Lord's decision in Majrowski –v-
Guy's and St Thomas' NHS Trust [2006] UKHL 34, that an
employer can only be liable for the legal wrongs of its
employees. As a result, as section 47B of the 1996 Act does
not extend to make it unlawful for workers to victimise
whistleblowers the employer cannot be held vicariously
liable. However, the Court of Appeal clarified that it would
depend on the nature of the employee's wrongs as to whether the
employer could be held vicariously liable. For example, as in
the case of Majrowski, a course of harassment under the
Protection from Harassment Act could give rise to a liability for
the employee for which the employer may be vicariously
liable.
In respect of the second element of the appeal, the Court of Appeal
stated that there must be a causal link between the protected act
and the employer's acts or omissions for the employer to be
liable. In this case, as the Employment Tribunal had been
satisfied, on the basis of the facts available to it, that the
genuine reason for the NHS Trust redeploying the nurses was to deal
with the dysfunctional situation in the workplace (and not as a
result of the protected disclosure) then that discharged the burden
on the Trust of showing that the protected disclosure played no
part in its actions. However, the Court of Appeal clarified
that if the Employment Tribunal considers that the reason given is
not genuine or is less than the whole story then it may be
legitimate for it to infer that it was due to the protected
disclosure. The question as to whether liability arises
depends on whether the protected disclosure is a material factor in
the employer's decision to subject the employee to
detriment.
This case provides useful clarification for employers on the legal
issues relating to whistleblowing claims. However, employers
should bear in mind other avenues of recourse that employees may
have in similar circumstances, e.g. a potential claim of
constructive dismissal, and think carefully about how they respond
to issues arising from the making of a protected disclosure to
ensure they avoid unnecessary exposure to liability.
This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq
Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.
The original publication date for this article was 26/10/2011.