In NHS Manchester –v- Fecitt & Ors [EWCA Civ 1190] the Court of Appeal has stated that an employer cannot be held vicariously liable for acts of victimisation of its employees in cases of whistleblowing. This is on the basis that unlike discrimination legislation, where employees can be held personally liable for their acts of victimisation against an employee pursuing a discrimination claim, no such liability exists for employees in relation to whistleblowing claims. The Court of Appeal has also provided useful clarification on the issue of causation when considering claims by employees that they have been subjected to a detriment by their employer for making a protected disclosure.
The case related to a number of nurses who had raised concerns about a colleague which constituted a protected disclosure. As a result the nurses were subjected to hostile acts by their colleagues, and in response to the negative impact on the working environment the Trust redeployed the nurses from their place of work. The nurses in question then claimed against the Trust on the basis that it had breached section 47B of the Employment Rights Act 1996 in that (i) it was vicariously liable for their victimisation by their colleagues, and (ii) that by failing to prevent victimisation it had breached their right not to be subjected to detriment for making a protected disclosure.
In respect of the first element, the Court of Appeal, upheld the House of Lord’s decision in Majrowski –v- Guy’s and St Thomas’ NHS Trust  UKHL 34, that an employer can only be liable for the legal wrongs of its employees. As a result, as section 47B of the 1996 Act does not extend to make it unlawful for workers to victimise whistleblowers the employer cannot be held vicariously liable. However, the Court of Appeal clarified that it would depend on the nature of the employee’s wrongs as to whether the employer could be held vicariously liable. For example, as in the case of Majrowski, a course of harassment under the Protection from Harassment Act could give rise to a liability for the employee for which the employer may be vicariously liable.
In respect of the second element of the appeal, the Court of Appeal stated that there must be a causal link between the protected act and the employer’s acts or omissions for the employer to be liable. In this case, as the Employment Tribunal had been satisfied, on the basis of the facts available to it, that the genuine reason for the NHS Trust redeploying the nurses was to deal with the dysfunctional situation in the workplace (and not as a result of the protected disclosure) then that discharged the burden on the Trust of showing that the protected disclosure played no part in its actions. However, the Court of Appeal clarified that if the Employment Tribunal considers that the reason given is not genuine or is less than the whole story then it may be legitimate for it to infer that it was due to the protected disclosure. The question as to whether liability arises depends on whether the protected disclosure is a material factor in the employer’s decision to subject the employee to detriment.
This case provides useful clarification for employers on the legal issues relating to whistleblowing claims. However, employers should bear in mind other avenues of recourse that employees may have in similar circumstances, e.g. a potential claim of constructive dismissal, and think carefully about how they respond to issues arising from the making of a protected disclosure to ensure they avoid unnecessary exposure to liability.