NHS Manchester v Fecitt & Ors

Under section 47B of the Employment Rights Act 1996, a protected disclosure must materially influence the employer’s detrimental treatment. A causal background or a counterfactual connection is insufficient. Where the tribunal accepts that the employer acted for a genuine alternative reason, the disclosure played no part in the decision.

The statutory protection is confined to acts and deliberate omissions of the employer. It does not create a free-standing liability for colleagues who victimise a whistleblower. An employer cannot be vicariously liable under the provision unless the colleague has committed an actionable legal wrong.

Three nurses made protected disclosures concerning a colleague’s claimed qualifications and the consequent risk to health and safety. The disclosures caused workplace conflict. The employer later redeployed two nurses and stopped offering shifts to the third. The nurses also alleged that management had failed to prevent hostile conduct by colleagues.

The Employment Tribunal dismissed the section 47B claims. It found that management acted to resolve a dysfunctional workplace, not because the nurses had made protected disclosures. The Employment Appeal Tribunal allowed the nurses’ appeal, held that a stricter causation approach might apply, held that vicarious liability could arise for colleagues’ acts, and remitted the matter.

The employer appealed. The central issues were the causation test for detriment short of dismissal and whether section 47B permits vicarious liability for colleagues’ victimisation where those colleagues commit no legal wrong.

1. Appeal allowed. The court restored the Employment Tribunal’s finding that there had been no breach of section 47B of the Employment Rights Act 1996.

2. The Employment Tribunal had permissibly found that the employer’s reasons were genuine. It acted to resolve a dysfunctional situation, and in relation to the third nurse also acted because of a pre-existing negative view. Those findings meant that the protected disclosures had played no part in the decisions. A tribunal may draw an inference from detrimental treatment of an innocent whistleblower, but it must determine the employer’s actual reason. A genuine explanation unrelated to the disclosure is capable of defeating the claim.

3. Elias LJ stated that section 47B is infringed where a protected disclosure materially influences the employer’s treatment, meaning an influence which is more than trivial. The dismissal test in section 103A, requiring the protected disclosure to be the sole or principal reason, does not govern detriment claims under section 47B. This point was strictly unnecessary to the disposal because the Tribunal had found no causal connection.

4. The EAT had erred in following Cumbria County Council v Carlisle-Morgan [2007] IRLR 314. Vicarious liability requires a legal wrong by the employee. As Majrowski v Guy’s and St Thomas’ NHS Employer [2006] UKHL 34 confirms, the employee’s primary wrong is imputed to the employer. Section 47B imposed no liability on colleagues for the alleged victimisation, and no other actionable wrong was pleaded or established.

5. The court rejected attempts to expand section 47B so as to guarantee protection against all adverse effects of colleagues’ hostility. Parliament had confined the provision to the employer’s acts and deliberate omissions done on the ground of a protected disclosure. Any perceived gap in protection was a matter for Parliament.

• Court of Appeal (Civil Division): Allowed the employer’s appeal and restored the Employment Tribunal’s dismissal of the section 47B claims.

• Employment Appeal Tribunal: Allowed the nurses’ appeal, adopted a causation approach derived from discrimination law, held that vicarious liability could arise, and remitted the case: UKEAT/0150/10/CEA.

• Employment Tribunal, Manchester: Dismissed the claims after finding that the employer’s acts and omissions were not because of the protected disclosures.