UK: Court Of Appeal Finds Employer Cannot Be Vicariously Liable For Employees' Treatment Of A Whistleblower And Rules On Causation In Whistleblowing Cases

Key facts

The claimants expressed concerns to their manager about a colleague who they believed was exaggerating his qualifications. Relationships within the workplace subsequently broke down and the employer redeployed the claimants. The claimants brought claims in an employment tribunal that they had been subjected to a detriment by the employer as a result of making protected disclosures. The tribunal accepted that the claimants had made a protected disclosure and had been subjected to a detriment, but found that the detriment had not been a result of the protected disclosure. Rather, the employer had taken the only feasible action to resolve dysfunctional working relationships. The claimants appealed to the EAT, which held that the tribunal had applied the wrong test in considering the connection between the protected disclosure and the detriment; the correct test was whether the protected disclosure "played no more than a trivial part" in the application of the detriment. The employer appealed to the Court of Appeal.

The decision

The Court of Appeal found that there was nothing in the tribunal's judgment that was inconsistent with the causation test applied by the EAT and the claimant's whistleblowing complaints were therefore rejected. It confirmed, however, that the correct test is whether the protected disclosure materially influences (in the sense of being more than a trivial influence) the employer's treatment of the whistleblower.

What this means for employers

In this case the employer satisfied the tribunal that its action had been prompted by the need to resolve dysfunctional working relationships, rather than by the claimants' protected disclosure. Employers should note, however, that a claimant bringing a detriment claim relating to whistleblowing need only show that the protected disclosure materially influenced the employer's treatment of them, not that the protected disclosure was the sole or principal reason for that treatment.

NHS Manchester v Fecitt and others [2011] EWCA Civ 1190

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.