A recent EAT decision has confirmed that an employer may be vicariously liable where an employee is victimised by a fellow employee as a result of making protected disclosures. This decision is interesting as the wording of the relevant section of the Employment Rights Act 1996 (s.47B ERA) refers to the right of a whistleblower not to be subjected to a detriment by any act (or failure to act) by the employer but, does not expressly provide that anything done by employees in the course of employment shall be treated as the act of the employer. By contrast, the discrimination statutes (s.41 Sex Discrimination Act, s. 33 Race Relations Act and s.58 Disability Discrimination Act 1995) all specifically provide that anything done by employees in the course of employment shall be treated as the act of the employer for the purposes of vicarious liability. Could Parliament have intended the concept of vicarious liability to apply in this context without express words (such as are in the Discrimination Acts) and without a statutory defence being provided? The EAT held, partly on public policy grounds, that employers could be vicariously liable for detriment suffered by the whistleblower at the hands of fellow employees. To absolve employers of liability for the conduct of their employees would weaken the protection afforded under the legislation. Further, the concept of "employer" is, in any event, a legal construct. There are obviously various levels of seniority within an organisation and the EAT did not accept that it should arbitrarily draw a line and say that no act by any person below that line is an act of the employer. Furthermore, by reference to Woodward v Abbey National  (which held that victimisation post-employment was protected under the ERA), the concept of victimisation should be interpreted consistently across all the relevant statutes as "it would be odd indeed if the same sort of act could be victimisation for one purpose, and not for the other". (Cumbria County Council v Carlisle).