Following a protected disclosure about a fellow nurse, three nurses experienced victimisation and were threatened by fellow employees. Two of the nurses were redeployed elsewhere and the third nurse, a bank nurse, was not given further work. The Court of Appeal considered whether the employer had victimised the whistleblowers because they had made a protected disclosure, and whether the employer was vicariously liable for various detriments inflicted on the three nurses by fellow employees.
The Employment Rights Act 1996 (ERA) provides that a worker has the right not to be subjected to any detriment by their employer because they have made a protected disclosure. However, a worker is protected only if the detriment is inflicted by the employer, (rather than by a fellow worker), and that detriment is inflicted because the worker made the protected disclosure. In this case, the Court of Appeal held that:
- As there is no provision in the ERA making employees personally liable for victimising whistleblowers the nurses’ claims could not succeed.
- In taking the action it did, the employer had not been motivated by the fact that the whistleblowers had made protected disclosures, but by a desire to improve a difficult working environment.
Key point – in cases of protected disclosure employers should tread carefully and ensure the ‘whitsleblower’ is not victimised as a result.
NHS Manchester v Fecitt and others, Court of Appeal