In this case of NHS Manchester v Fecitt and other and Public Concern at Work, a group of three nurses working at a walk-in centre became aware that one of their colleagues was making false statements to other members of staff about his qualifications and level of clinical experience. Concerned that this could endanger the health and safety of patients, the three nurses “blew the whistle” about their colleague’s conduct. There was no dispute that the nurses made a “protected disclosure” to bring them under the protection of the whistleblowing legislation as set out in the Public Interest Disclosure Act 1998 (PIDA) and the Employment Rights Act 1996 (ERA).
Following their protected disclosure, the three nurses were subjected to unpleasant treatment at work by some of their colleagues who felt that they had taken the matter too far. They were isolated and subjected to personal insults and one of the nurses received a threatening telephone call. Ultimately, as a result of this treatment, NHS Manchester removed one claimant from her managerial responsibilities, and later redeployed her and another claimant away from the centre. The third claimant, a bank nurse, was not given any more work. They brought a claim in the Employment Tribunal, alleging that they had been subjected to detriment for making a protected disclosure.
At first instance the Employment Tribunal found that the employer’s decision to redeploy the claimants was not because they had made a protected disclosure, but rather it was the only feasible way of resolving the dysfunctional working relationship at the walk-in centre. However the Tribunal failed to consider whether, as a matter of principle, NHS Manchester could be vicariously liable for the actions of the claimants’ colleagues. The Claimants appealed.
The wording of s.43B ERA only provides that “a worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.” This suggests that an employer can only be liable for its own acts, not acts done by employees. However, the EAT held that an employer could still be vicariously liable for acts of detriment carried out by its employees on the grounds that colleagues have made protected disclosures. This decision was made by reference to a previous decision of the EAT, Cumbria County Council v Carlisle-Morgan.
The employer appealed against this finding to the Court of Appeal who disagreed with the EAT’s conclusion and held that Cumbria County Council v Carlisle-Morgan had been incorrectly decided. The Court of Appeal held that an employer can only be found vicariously liable for the “legally wrong” acts of its employees and that “absent any legal wrong by the employee, there is no room for the doctrine to operate.”
Unlike the discrimination legislation, which provides that employees can be personally liable for their discriminatory acts, there is no provision making it unlawful for employees to subject whistleblowers to a detriment. Accordingly, an employer cannot be liable for acts for which the employee himself would not be liable under the whistleblowing legislation.