NHS Manchester v Fecitt & Ors
October 25, 2011
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
- LORD JUSTICE MUMMERY
- LORD JUSTICE ELIAS
- LORD JUSTICE DAVIS
Areas of Law
- Employment Law
October 25, 2011
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
AI Generated Summary
NHS Manchester appealed against an Employment Appeal Tribunal decision which had remitted the whistleblowing detriment claims of nurses Mrs Fecitt, Mrs Woodcock, and Mrs Hughes to the Employment Tribunal. The claimants had made protected disclosures about colleague Mr Daniel Swift’s misrepresented qualifications, triggering workplace hostility and management actions: removal of Mrs Fecitt’s managerial duties, redeployment of Fecitt and Woodcock, and cessation of shifts for Hughes. The EAT had held the Tribunal may have misapplied the causation standard and that employers could be vicariously liable for co-workers’ victimisation. Writing for the Court of Appeal, Elias LJ rejected vicarious liability under section 47B absent an underlying employee legal wrong, criticized Cumbria as misconceived, and held the Tribunal’s findings showed the employer acted to resolve dysfunction rather than because of the disclosures. Davis LJ and Mummery LJ concurred. The appeal was allowed and the ET’s decision restored.
Judgment
Lord Justice Elias :
After a 12-day hearing in the Employment Tribunal in Manchester in the Autumn of 2009, the Tribunal held that the claimants (as I will continue to call them although they are the respondents to this appeal) had not been unlawfully victimised by their employers, the NHS Manchester (“the Employer”) contrary to section 47B of the Employment Rights Act 1996, for making a protected disclosure. The claimants successfully appealed to the Employment Appeal Tribunal (“the EAT”) on two grounds. First, the EAT appears to have concluded that the Employment Tribunal did not apply, or may not have properly applied, the appropriate test in determining whether or not detriments suffered by the claimants were because of the protected disclosures. Second, the EAT held that the Tribunal had failed to consider whether or not the Employer was vicariously liable for acts of its employees directed against the claimants amounting to victimisation for making the protected disclosure. The matter was remitted to the same Employment Tribunal to reconsider its decision in the light of the EAT ruling. The Employer now appeals against the EAT judgment and seeks to have the order of the Employment Tribunal reinstated.
In addition to representation by the parties, we have had the benefit of both written and oral submissions from Mr Allen QC, acting for the Interveners, Public Concern at Work. This is a charity which describes itself as “the whistle blowing charity” and advises employers and workers. Amongst other things it provides a free advice line to workers who are concerned about some wrongdoing at work and do not know what they should do about it.
The statutory provisions.
The Public Interest Disclosure Act 1998 inserted a new Part IV A into the Employment Rights Act 1996. The long title to the Act describes it as:
“An Act to protect individuals who make certain disclosures of information in the public interest: to allow such individuals to bring action in respect of victimisation; and for connected purposes.”
I shall refer to individuals who make such public interest disclosures in good faith as “whistleblowers”, as they are colloquially known.
4. In summary form the statute operates as follows. A worker has the right not to be subjected to an act of victimisation by his employer for making what is termed “a protected disclosure”. A protected disclosure is a qualifying disclosure as defined by section 43B of the 1996 Act. It is the disclosure