Fecitt v NHS Manchester

Where a worker proves a protected disclosure and a subsequent detriment, the employer bears the burden under Employment Rights Act 1996, section 48(2), of showing the ground for the act or deliberate failure to act. The employer must establish, on the balance of probabilities, that the protected disclosure played no more than a trivial part in the detriment. This is the in no sense whatsoever test applied in discrimination victimisation cases. The employer may also be vicariously liable for detrimental acts by employees where those acts are sufficiently closely connected with their employment. The appeal was allowed and the case remitted for findings on causation and vicarious liability.

Three nurses appealed against the dismissal of their whistle-blowing detriment claims by the Manchester Employment Tribunal. They had disclosed concerns about a colleague’s qualifications and alleged that they later suffered detriments, including removal from their workplace and loss of bank work. The Tribunal accepted that protected disclosures had been made and that detriments occurred, but held that the detriments were not suffered on the ground that the disclosures had been made. It also failed to determine whether the Respondent was vicariously liable for acts of other employees. The central issues were the proper causation test under section 47B and the scope of vicarious liability.

1. Appeal allowed. The Employment Tribunal had applied an incorrect approach to causation and had failed to determine the vicarious-liability issue. The matter was remitted to the same Tribunal for reconsideration.

2. Victimisation for whistle-blowing is to be approached in the same way as victimisation and discrimination in other statutory contexts. Once a protected act and a subsequent detriment are established, section 48(2) places the burden on the employer to show the ground on which the act or deliberate failure occurred.

3. Following Igen v Wong [2005] IRLR 258, the employer must prove that the protected disclosure played no more than a trivial part in the application of the detriment. Expressed differently, the employer must prove that the treatment was in no sense whatsoever on the ground of the protected act. The Tribunal’s approach, which treated the protected disclosure as insufficient unless it was the operative or principal reason, was too favourable to the employer. Aspinall v MSI Mech Forge Limited [2002] EAT/891/01 and London Borough of Harrow v Knight [2003] IRLR 140 were not followed to the extent that they required a stricter causative or motivational test.

4. The Respondent could be vicariously liable for detrimental acts of employees. The applicable question was whether the employees’ conduct was so closely connected with acts they were authorised to do that it could fairly and properly be regarded as conduct in the course of employment. The Tribunal was required to determine the acts, perpetrators, detriment, and the necessary connection with employment. Cumbria County Council v Carlisle-Morgan [2007] IRLR 314 was followed, applying the principle explained by Lord Nicholls in Majrowski v Guy’s and St Thomas’ NHS Trust [2006] UKHL 34.

• Employment Appeal Tribunal: allowed the appeal and remitted the claims to the Employment Tribunal for reconsideration.
• Manchester Employment Tribunal: dismissed the claims, holding that the relevant detriments were not suffered on the ground that the Claimants had made protected disclosures.