Fecitt and others v NHS Manchester
Ms Fecitt, Ms Woodcock and Ms Hughes were employed by NHS Manchester as registered nurses at a walk-in health centre. In March 2008, they raised concerns about another nursing colleague, Mr Swift, who had boasted about having clinical experience and qualifications that he did not, in fact, possess.
The employer accepted that, in passing on these concerns, Ms Fecitt, Ms Woodcock and Ms Hughes were making a protected disclosure. Mr Swift subsequently apologised about exaggerating his qualifications and it was decided that no further action would be taken against him. This did not satisfy Ms Fecitt, Ms Woodcock and Ms Hughes, who continued to pursue the matter, with the result that staff relations at the walk-in centre deteriorated. The three of them were subjected to unpleasant behaviour by other staff. They raised grievances about their treatment. Mr Swift made allegations of bullying and harassment and Ms Fecitt made a formal complaint under the whistleblowing policy.
Ultimately, Ms Fecitt was removed from her managerial responsibilities and she and Ms Woodcock were redeployed away from the walk-in centre. Ms Hughes, who was a bank nurse, was simply not given further work by the employer.
Ms Fecitt, Ms Woodcock and Ms Hughes all brought employment tribunal proceedings alleging that they had been subject to a detriment as a result of their protected disclosure, contrary to the protection for whistleblowers in s.47B Employment Rights Act 1996.
The employment tribunal decided that the claims should not succeed. Ms Fecitt, Ms Woodcock and Ms Hughes had suffered detriments in that they had been subjected to unpleasant behaviour by colleagues and also by virtue of the centre’s decision to redeploy Ms Fecitt and Ms Woodcock. However, the tribunal decided that these detriments were not “on the ground that” the claimants had made a protected disclosure. Mrs Nixon’s actions were the “only feasible way of resolving” the dysfunctional state of the walk-in centre.
The claimants appealed against the employment tribunal’s decision, arguing that the tribunal had taken the wrong approach to the question of causation. The tribunal appeared to have applied a test that required the making of the protected disclosure to be “the direct and proximate cause” of the detriment suffered by the claimants.
The Employment Appeal Tribunal agreed that the tribunal had taken the wrong approach. Where an individual has made a protected disclosure and has subsequently suffered unwanted treatment amounting to a detriment, it is for the employer to prove that its actions (or any failure to act) was “in no sense whatsoever” on the ground of the protected disclosure. The disclosure must play no more than a trivial part in causing the detrimental treatment.
This decision brings the test for causation in whistleblowing claims in line with the test that applies in discrimination cases. It will now be harder for an employer to defend its position when an employee suffers detrimental treatment after making a protected disclosure.
As in this case, whistleblowing allegations can lead to a breakdown in workplace relationships but, following this decision, employers will have to be more careful than ever to ensure that any steps taken to resolve such discord do not amount to detrimental treatment of the whistleblower.
Alan Strain, employment partner
Practical guidance from XpertHR on whistleblowing: