Abertawe Bro Morgannwg University Health Board v Ferguson

For the purposes of section 47B of the Employment Rights Act 1996, “subjected to” has the force of causation. It covers positive acts and deliberate omissions, without requiring control over the circumstances producing the detriment.

A deliberate failure to act requires a duty, discretion, power or legal ability to act. A mere expectation is insufficient. Strike-out will ordinarily be inappropriate in fact-sensitive whistleblowing or discrimination claims requiring evidence of causation, contractual obligations, statutory powers and the reason for the conduct.

A GP claimed that, after making protected disclosures concerning prescribing by a practice partner, the Health Board subjected her to five detriments contrary to section 47B of the Employment Rights Act 1996. The claim against her GP partners had fallen away.

The Employment Tribunal refused the Health Board’s application to strike out three alleged detriments. The Health Board appealed, arguing that it could not be liable for detriments principally caused by third parties, that “subjected to” required control over the relevant circumstances, and that a failure to act required a legal duty.

Appeal dismissed. The Employment Tribunal correctly refused to strike out the pleaded detriment claims.

1. “Subjected to” in section 47B has the force of causation and covers both positive acts and deliberate failures to act. It does not require control over the events producing the detriment.

2. The control-based approach in Burton v De Vere Hotels Ltd [1996] IRLR 596 was not followed. The Tribunal accepted the authoritative rejection of that approach in Pearce v Governing Body of Mayfield Secondary School (sub nom McDonald v Ministry of Defence) [2003] ICR 937.

3. A deliberate failure to act must be assessed in context. A contractual discretion or statutory power or ability to act may suffice; a mere expectation that action would be taken does not.

4. The allegations had to be taken at their reasonable highest. The issues of detriment, causation, the Health Board’s contractual and statutory powers, and the reason for the conduct required evidence. Strike-out was therefore inappropriate.

1. Employment Appeal Tribunal: dismissed the Health Board’s appeal from the Employment Tribunal’s refusal to strike out parts of the claim.