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Important Judgment on Whistleblowing

The Court of Appeal (Elias LJ giving the leading Judgment, sitting with Mummery and David LLJ) has handed down Judgment in NHS Manchester v Fecitt & Others (Public Concern at Work Intervening) [2011] EWCA Civ 1190. The Court of Appeal overturned the Judgment of the Employment Appeal Tribunal, a copy of which is available here.  

In broad terms, the issue to be determined was the correct standard of proof in respect of claims of having suffered a detriment by reason of whistleblowing. At first glance, this would appear to be a somewhat academic point, however since the Judgment was handed down by the EAT in November 2010 disputes over the correct law to be applied in respect of detriment claims has had a substantive impact on the conduct of such claims. Therefore, the Judgment is important.

The Employment Appeal Tribunal held in a reasoned Judgment (I suggest that you read both Judgments in full to understand the reasoning) that the correct approach to detriment claims was to apply the standard of proof in the same way that it would be applied in a discrimination claim. Notwithstanding the fact that the standard of proof provisions in respect of discrimination claims is derived from EU Law and is specifically derived from statute, the EAT considered that it was able to adopt this approach by reason of the statutory language of the sections inserted into the Employment Rights Act 1996. In addition, the EAT held that it was possible for an employer to be vicariously liable for the act of their employees in respect of detriment claims.

In relation to the issue of vicarious liability, the Court of appeal held that the EAT wrongly followed Cumbria County Council v Carlisle-Morgan [2007] IRLR 314 which was not consistent with paragraph 14 of Lords Nicholls speech in Majrowski v Guy’s and St Thomas’ NHS Employer [2006] UKHL 34 [2007] 1 AC 224 . In so doing, Elias LJ expressly determined that Carlisle-Morgan was incorrectly decided.  The important distinction is that in whistleblowing claims, the statue expressly refers to the acts/omissions of the employer. Where the employee had committed no legal wrong, the employer could not be vicariously liable for those acts, notwithstanding the fact that if the act had been committed by the employer, it would have constituted a legal wrong.

Turning to the issue of the standard of proof, the Court of Appeal accepted that the principles in Igen v Wong [2005] ICR 931 did not strictly apply as they derive from EU Law (para 43). However Elias LJ appears to indicate that the principles contained within Igen are relevant (para 43).

At paragraph 44, Elias LJ acknowledges the difficulty that has arisen in practice in that an anomaly has been created through a distinction existing between detriment and dismissal. Interestingly, Elias LJ resolves this anomaly by holding that as Parliament did not use identical language in s.103A ERA 1996 and s.47B ERA 1996, it was the intention of Parliament to create a differing standard of proof in respect of unfair dismissal and detriment.

The Court of Appeal went on to consider two additional points that were not before the EAT. Both amount to an attack on the Tribunal’s conclusion at first instance that the reason for the employers action was to address the ‘dysfunctional situation’ that had arisen as a result of the disclosures. Both of the grounds sought to argue that the concept of addressing a ‘dysfunctional situation’ was not a permissible explanation in law for the treatment received by the Claimant’s. Neither of the additional grounds (paragraphs 46-62) was successful

In addition, the following points are of note:

  • With Cumbria County Council v Carlisle-Morgan [2007] IRLR 314 having been wrongly decided, employers should be alive to the distinction between the acts of employees and the acts of the employer. Such a principle is not available in discrimination claims. Claimant’s need to ensure that their claims cannot be pigeonholed as complaints relating to the acts of employees.


  • The extent to which the Court of Appeal accepts the Judgment of the Employment Appeal Tribunal in respect of the standard of proof is not clear. The EAT Judgment is detailed in this respect and it may be legitimately argued that elements of the reasoning have been left intact by Elias LJ’s Judgment. Of course, this is a somewhat technical point and the Judgment of Elias LJ is the correct starting point.


  • At paragraph 51 Elias LJ held that the fact that an innocent whistleblower suffers a detriment requires scrutiny, but is not conclusive of causation. However, there is no ‘positive obligation’ on an employer to ensure that an employee does not suffer a detriment (paragraph 52). In such circumstances, employees should consider whether the implied term of trust and confidence or other implied terms, for example to take reasonable steps to ensure the safety of employees is engaged by any adverse conduct. Arguably, the availability of this argument can be inferred from the wording of paragraph 55.


  • The acknowledgement at paragraph 53 that situations can arise whereby opposing employees are both relying upon whistleblowing provisions will be utilised by employers in the future. In phrasing paragraph 53 in this way, Elias LJ is opening the door to employers to rely upon the assertion that their actions are a way of addressing ‘dysfunctional relationships’.


  • In addition, it may be possible to transplant the acknowledgment at paragraph 53 of the industrial reality of the need to address dysfunctional relationships to other types of claim before the Employment Tribunal. If the Court of Appeal is prepared to accept this industrial reality, there is no reason to restrict the acknowledgement of the existence of this industrial reality to whistleblowing claims or the facts of the case.


  • At paragraph 29 Elias LJ refers to the standard of proof, hence my use of the term above. It might be possible to have an interesting academic argument as to whether or not the issue in reality is one of burden rather than standard. However, I will leave that for now….

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