NHS Manchester v Fecitt  EWCA Civ 1190 (25 October 2011)
At a time in which the coalition government is focussing hard on employment rights and, in particular, the right of unfair dismissal, the Court of Appeal has issued an important judgment on the scope of those rights. It confirms that in whistleblowing cases, the burden of proof for dismissal from employment differs from that for claims of any other detriment.
Burden of proof
The EAT had considered that it was bound to follow the approach in Igen v Wong  ICR 931. The Court of Appeal did not agreed that Igen was binding but it accepted that the same approach is to be applied (paragraph 43):
"... the reasoning which has informed the EU analysis is that unlawful discriminatory considerations should not be tolerated and ought not to have any influence on an employer's decisions. In my judgment, that principle is equally applicable where the objective is to protect whistleblowers, particularly given the public interest in ensuring that they are not discouraged from coming forward to highlight potential wrongdoing."
Thus, notwithstanding that there was not the underpinning legislative context of the European directive, that approach should inform the reasoning in relation to the entirely domestic law on whistleblowing.
That the approach is similar is perhaps not so surprising, given that:
(a) The burden is expressly placed upon the employer to show the ground upon which an act is done (ERA s 48(2));
(b) In relation to the discrimination provisions prior to the implementation of the (now) Equal Treatment Directive (as expounded in Nagarajan), the question was whether the proscribed ground had a material influence on the decision, material being more than trivial. In Igen itself, the Court of Appeal found it "hard to believe that the principle of equal treatment would be breached by the merely trivial", suggesting that this was consistent with the Directive's language of "no discrimination whatsoever".
The combination of these features means that it is for the employer to demonstrate that the grounds upon which it acted were not materially influenced by the protected disclosure.
On the facts, the Tribunal had decided that the employer's act in redeploying the claimants was the only feasible way of dealing with a dysfunctional situation. This was not on the ground of the protected disclosure, albeit that the protected disclosure may have been the root cause of the dysfunction.
Elias LJ's judgment referred to concepts familiar in the discrimination context, in particular the idea of subconscious reasons and drawing inferences from a false, or less than full, explanation by the employer.
He also noted at paragraph 51 that:
"The detrimental treatment of an innocent whistleblower necessarily provides a strong prima facie case that the action has been taken because of the protected disclosure and it cries out for an explanation from the employer."
This appears different from the discrimination field, in which it has repeatedly been emphasised that a difference in treatment and a difference in sex is not sufficient to satisfy stage 1 of the Igen test: see for example Madarassy v Nomura International plc  IRLR 246, paragraph 56.
Where the individual is an employee and his complaint is about dismissal, that complaint is removed from ERA s 47B (by sub-section (2)) and into s 103A. There, the question is whether the protected disclosure was the reason or principal reason for the dismissal. The Court of Appeal recognised that this meant that there was a different approach to dismissal cases than to cases involving another detriment. This creates an anomaly, but one which was intended by the legislature (see paragraph 44).
One perhaps strange implication of the Court of Appeal's ruling is that where a worker is removed from work, this will be a detriment and the respondent will need to show that the protected disclosure had no material influence upon the decision: the worker enjoys the more generous approach under s 47B than the dismissed employee does under s 103A.
The other aspect of the case was the ruling that an employer will not be vicariously liable for the acts of its employees where those acts are themselves not wrongful. This was applying Majrowski v Guy's and St Thomas' NHS Employer  1 AC 224 and overruling the EAT's decision in Cumbria County Council v Carlisle-Morgan  IRLR 314, which was based on a misreading of Majrowski.
Thus, in the context of whistleblowing, an employer is not liable for the acts of its employees even if they amount to victimisation on the ground of making a protected disclosure. This is because (in contrast with the discrimination provisions: see the Equality Act 2010 s 109(1)) the legislation does not render such acts unlawful; it is only the acts of the employer done on that ground which are unlawful. Of course, an employer will act through its agents, generally managers, and those acts may render it liable; but it is not vicariously liable for the lawful acts of its employees.
For parties seeking to uphold the reasons of an employment tribunal, the Court of Appeal made observations about the nature of the reasons required. Elias LJ said (at paragraph 62):
"There is no need for a blow by blow rehearsal of the evidence, and indeed such an approach often obfuscates the issues rather than assisting the Tribunal to reach its conclusion. In addition, a Tribunal is entitled - and indeed should be encouraged - to explain its legal conclusions crisply and succinctly as this Tribunal did."
Nevertheless, it considered that the Tribunal in that case could have said a little more on certain issues of the case, both to assist the Court of Appeal's understanding of the tribunal's reasoning, but also in order to demonstrate that the Tribunal had fully understood the claimants' sense of grievance. The last point is perhaps a salutary reminder to Employment Judges that where they decide that no legal wrong has been done to an individual, there may still be a justified sense of grievance which warrants recognition.
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