More confusion on the correct causation test in whistleblowing cases as the Court of Appeal controversially overturns the EAT decision in NHS Manchester v Fecitt. The Court of Appeal has held that section 47B of the Employment Rights Act 1996 (protection from detriment on the ground of a protected disclosure) is infringed if a protected disclosure materially (i.e. more than trivially) influences an employer’s treatment of an employee who has made a whistle-blowing allegation. It also held that an employer cannot be made vicariously liable under the whistle-blowing legislation for such actions of its employees as one might otherwise argue amount to victimisation. This is because an employer can only be held vicariously liable for the legal wrongs of its employees (see the House of Lords decision in Majrowski v Guys and St Thomas’ NHS Trust). In contrast to discrimination legislation, there is no clear statutory provision which makes it illegal to victimise employees who make protected disclosures.
Revisiting briefly the facts of this case, it concerned three nurses who worked for NHS Manchester and who, in various capacities, raised concerns about the qualifications of a colleague. An investigation disclosed no major concerns but the three nurses did not let the matter drop and caused general dissent among the staff working with them. As a result of what then became a ‘dysfunctional’ working atmosphere, one claimant had her managerial responsibilities removed, one was redeployed and the other, a bank nurse, was given no further work. They brought claims that they had been subjected to a detriment under s.47B Employment Rights Act. NHS Manchester’s response was that the reason for its actions was that it was the ‘only feasible method’ to deal with the dysfunctional working conditions created by the three nurses.
From a layperson’s viewpoint, it can be seen that there was a clear connection between the whistle-blowing and the steps taken by management to deal with the situation which arose in the department. The question at issue however was to what extent did the whistle-blowing allegation itself play a part in that decision? The EAT had adopted the test in discrimination law set out in Igen v Wong (a race discrimination case) that the detrimental treatment must be ‘in no sense whatsoever‘ because of a protected characteristic or protected act. This was the requirement imposed by EU law in the Burden of Proof Directive. It disagreed with the test in London Borough of Harrow v Knight and Aspinall v MSI Mech Forge Ltd that the protected disclosure must be the real or core reason for the detrimental treatment.
The Court of Appeal disagreed with the EAT and allowed Manchester’s appeal. In the EAT His Honour Judge Serota had ruled that "once less favourable treatment amounting to a detriment has been shown to have occurred following a protected act the employer’s liability…is to show the ground on which any act or deliberate failure to act was done and that the protected act played no more than a trivial part in the application of the detriment". This is perhaps not quite the same thing as the test described in the previous paragraph – in any event Lord Justice Elias ruled that the correct test should be that "section 47B will be infringed if the protected disclosure materially influences (in the sense of being more than a trivial influence) the employer’s treatment of the whistle-blower".
In any event, the tribunal had been satisfied that the reasons given by Manchester for acting as it did were genuine and demonstrated that the fact that the claimants had made protected disclosures did not influence those decisions. Elias LJ agreed with HHJ Serota’s view that "once an employer satisfies the Tribunal that he has acted for a particular reason – here, to remedy a dysfunctional situation – that necessarily discharges the burden of showing that the proscribed reason played no part in it".
Notably, in this case, Public Concern at Work (PCAW) intervened to make submissions on the causation test in order to ensure there was effective protection for whistle-blowers and that the public interest objectives of the whistle-blowing legislation were not watered down by the Court of Appeal. Their submissions were rejected by the Court of Appeal and Elias LJ ruled that their call for words to be added to section 47B ERA went far beyond the legitimate role of the court in construing legislation. Needless to say PCAW were unhappy with the outcome and have called for interested parties to ask the Government to revisit this issue and to provide for greater legal protection for whistle-blowers.
This decision comes at a time when the NHS has announced changes to its constitution (welcomed by PCAW) to be effected in early 2012 and aimed at affording greater protection to health staff who raise concerns about patient care. These changes include an expectation that staff should raise concerns at the earliest opportunity, a pledge to support staff and ensuring concerns are fully investigated and adding clarity to the legal protection afforded to staff who raise concerns. PCAW has stated that the proposed changes "seem to be a genuine attempt to strike the right balance between supporting individuals who speak up and the responsibilities of organisations".