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In Fecitt v NHS Manchester, the Court of Appeal considered causation in whistleblowing cases. The claimants were nurses who had made protected disclosures about a colleague. The working relationships between the claimants and a number of colleagues became difficult as a result and they were eventually removed from the medical centre they worked in because of the ‘dysfunctional situation'. The EAT held that once a claimant had shown that there was less favourable treatment amounting to a detriment following a protected disclosure, the burden of proof is on the employer to show that that treatment was ‘in no sense whatsoever on the ground of the protected disclosure'.
On appeal from the EAT, the Court of Appeal held that the nurses had not been unfairly dismissed. The correct test was whether the protected disclosure materially influenced (ie was more than a trivial factor) the employer's treatment of the whistleblower. Here, the Court of Appeal agreed with the tribunal that the claimants' removal from their place of work was because of the dysfunctional situation and not because of their disclosures.
The Court of Appeal also held that there was no provision in whistleblowing legislation that made individuals personally liable for acts of victimisation against whistleblowers, unlike in discrimination legislation, and the claimants had not been victimised because of their disclosures.
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