24 January 2011 #Employment
In Fecitt and others v NHS Manchester EAT/0150/10 the EAT have held that in detriment claims under s.47B of the Employment Rights Act 1996 (commonly referred to as whistleblowing claims) it is for the employer to show that the dismissal was "in no sense whatsoever" on the grounds of the protected disclosure. This means that the disclosure must play no more than a trivial part in causing the detriment.
Ms Fecitt, Ms Woodcock and Ms Hughes were employed as nurses at a walk-in health centre. In March 2008, they raised concerns about a colleague who they believed had fabricated a number of his qualifications. It was accepted by the employer that these comments amounted to a protected disclosure.
Their colleague apologised for his actions and the employer decided to take no disciplinary action against him. The claimants continued to complain, however, which led to other staff subjecting them to unpleasant behaviour. The claimants raised grievances about their treatment, Ms Fecitt also made a formal complaint under the whistleblowing policy and the colleague who had been exaggerating made allegations of bullying and harassment against the claimants.
Ms Fecitt was then removed from her managerial responsibilities and both she and Ms Woodcock were redeployed away from the walk-in centre. Ms Hughes, who was a bank nurse, was simply not given further shifts by the employer.
Ms Fecitt, Ms Woodcock and Ms Hughes all brought employment tribunal proceedings alleging that they had been subject to a detriment as a result of their protected disclosure.
The employment tribunal found in favour of the employer because the detriments suffered were not on the grounds that the claimants had made a protected disclosure. Removing them from their posts was, according to the ET, the "only feasible way of resolving" the dysfunctional staff issues in the walk-in centre.
The claimants appealed against the employment tribunal`s decision. They argued that in requiring the disclosures to be "the direct and proximate cause" of the detriment suffered by the claimants they had erred in law.
The Employment Appeal Tribunal agreed, stating that where an individual has made a protected disclosure and has subsequently suffered a detriment, it is for the employer to prove that its actions (or any failure to act) were in no sense whatsoever on the grounds of the protected disclosure.
It will now be harder for an employer to defend its position when an employee suffers detrimental treatment after making a protected disclosure.