The intervention of the whistleblowing charity Public Concern at Work has failed to persuade the Court of Appeal to plug what it sees as a gap in the legislation designed to protect whistleblowers. NHS Manchester v Fecitt is about the not uncommon situation which arises where a small group raises concerns about a co-worker, and as a result is cold-shouldered by other colleagues. The Court of Appeal had to assess how far an employer must go to protect the whistleblower in this situation.
There is nothing explicit in the legislation to impose personal liability on employees who victimise whistleblowers, or to deem employers to be liable in this situation. The Court of Appeal said that without such provision, an employer was not liable merely because of the actions of its employees. However it was perfectly possible that in harassing a whistleblower, a worker could commit some other kind of legal wrong for which the employer could be made liable. Equally, deliberately allowing this kind of behaviour to go unchecked could be sufficient to amount to a deliberate failure to act on the part of the employer, which would be enough to make it liable in its own right.
So it would be a mistake to see this decision as an employer’s charter. However it has highlighted one area in which the whistleblowing legislation offers less protection to wronged employees than the corresponding provisions of the Equality Act. It will be interesting to see whether the Government, which has recently announced plans to strengthen protection for whistleblowers in the NHS, acts to address this discrepancy.