28 October 2011 #Employment
In NHS Manchester v Fecitt and others  EWCA Civ 1190, the Court of Appeal considered what the appropriate test of causation is in whistleblowing detriment cases.
It held that in order to avoid liability under the whistleblowing legislation, an employer must demonstrate that the making of the protected disclosure did not materially influence (‘material’ being more than trivial) the detrimental treatment of the whistleblower.
The Claimants in Fecitt were registered nurses working at a medical walk-in centre. They raised concerns regarding the veracity of a colleague’s claims about the extent of his clinical qualifications, which constituted a protected disclosure. The Claimants were subsequently subjected to hostile treatment by other colleagues working at the centre and a difficult working atmosphere ensued. Seeking to resolve the dysfunctional situation, the Respondent redeployed two of the Claimants, whilst the other ceased to do shifts at the centre; this was held to amount to detrimental treatment of the Claimants.
On the facts, it was accepted the Respondent acted genuinely and did not subject the Claimants to detrimental treatment on the ground that they had made protected disclosures. Rather, redeployment of the Claimants was the only feasible method of addressing the dysfunctional situation that had arisen as a consequence of the protected disclosures having been made.
Through Fecitt the Court of Appeal has thereby confirmed that it is easier for claimants to succeed in detriment claims than in automatically unfair dismissals claims under the whistleblowing legislation. With the approach in the latter being whether the protected disclosure was the ‘reason or principal reason for the dismissal’, rather than merely a material influence.