Fecitt and others v NHS Manchester

The Court of Appeal allowed the employer's appeal and restored the Employment Tribunal's original finding that there was no breach of section 47B of the Employment Rights Act 1996. Key legal principles applied were (i) liability under section 47B requires that the detrimental act or deliberate failure to act by the employer be done "on the ground that" the worker made a protected disclosure (a causation inquiry focused on the reason why the employer acted); (ii) the tribunal may accept an employer's genuine reason for acting (for example, to address a dysfunctional workplace) and that will discharge the employer's burden under section 48(2) unless the tribunal finds the employer's explanation to be false or a pretext; and (iii) an employer cannot be vicariously liable under section 47B for acts of colleagues where those colleagues have committed no independently actionable wrong, so the EAT's decision that vicarious liability could be imposed in such circumstances was in error. The Court emphasised that where an employee's conduct amounts to a distinct legal wrong it may give rise to vicarious liability, but no such wrongdoing was pleaded or established here.

This was an appeal from an Employment Appeal Tribunal decision remitting an Employment Tribunal's judgment. The claimants were three nurses who made protected disclosures about a colleague's misrepresented qualifications. They alleged victimisation under the Public Interest Disclosure Act 1998 (as inserted into the Employment Rights Act 1996, Part IV A) and complained both of positive acts by the employer (redeployment and removal of shifts) and of the employer's failure to prevent harassment by colleagues.

The Employment Tribunal (after a 12-day hearing) found that the claimants had made protected disclosures but concluded the employer had not victimised them under section 47B. The Tribunal applied a "reason why" approach to causation, rejected a pure "but for" test, and accepted the employer's explanation that redeployment and removal of shifts were measures taken to resolve a dysfunctional workplace rather than actions taken because the claimants had made protected disclosures. The Tribunal also did not resolve whether vicarious liability could arise where colleagues had committed no independently actionable wrong.

The Employment Appeal Tribunal allowed the claimants' appeal on two grounds: it considered the employer should have to show that the protected disclosure played "in no sense whatsoever" a part in the detrimental treatment (drawing on the Igen v Wong reasoning used in discrimination cases), and it held, following an earlier EAT decision (Cumbria County Council v Carlisle-Morgan), that an employer could be vicariously liable for colleagues' victimising acts committed in the course of employment even if those colleagues had committed no legally actionable wrong.

The Court of Appeal allowed the employer's appeal. On vicarious liability the court held that established law requires an employee to have committed a legal wrong before the employer can be vicariously liable; consequently the EAT was wrong to follow Cumbria. On causation the court held that the Employment Tribunal had applied the proper 'reason why' analysis, was entitled to accept the employer's genuine explanation (that action was taken to resolve dysfunction), and the Tribunal's findings were not inconsistent with the EAT's stated test. The court therefore restored the Employment Tribunal's finding that there was no breach of section 47B.

Nature of the claim: claims of victimisation for making protected disclosures under section 47B of the Employment Rights Act 1996 (as inserted by the Public Interest Disclosure Act 1998).

Issues framed by the court: (i) the correct test of causation for liability under section 47B (whether the protected disclosure must be the sole/principal reason or a material influence and what standard the employer must satisfy under section 48(2)); (ii) whether an employer can be vicariously liable under section 47B for colleagues' acts where those colleagues have committed no independently actionable wrong; and (iii) whether the Employment Tribunal's factual findings were open to it.

Concise account of reasoning: the court held that the Tribunal properly applied a "reason why" approach and was entitled to accept the employer's genuine rationale (resolving a dysfunctional workplace) which discharged the employer's onus that the protected disclosure did not influence the acts complained of. The court further held that vicarious liability cannot be expanded to cover colleagues' non-actionable victimisation under section 47B absent a distinct legal wrong by those colleagues; any remedy for that perceived lacuna lies with Parliament.

Appeal allowed. The Court held that (i) an employer cannot be vicariously liable under section 47B for colleagues' acts where those colleagues have committed no independently actionable wrong; (ii) the Employment Tribunal had correctly applied a 'reason why' causation inquiry and had been entitled to accept the employer's genuine explanation (resolving a dysfunctional workplace), which discharged the employer's burden under section 48(2); and (iii) the EAT was wrong to remit for further consideration on those grounds.

Employment Tribunal (Manchester) after a 12-day hearing in Autumn 2009 found no breach of section 47B. The Employment Appeal Tribunal (HHJ Serota QC presiding) allowed the claimants' appeal on two grounds and remitted the matter to the Employment Tribunal. The Court of Appeal ([2011] EWCA Civ 1190) allowed the employer's appeal and restored the Employment Tribunal's decision.