NHS Manchester v Fecitt & Ors  EWCA Civ 1190
Appeal against the EAT judgment which reversed an ET ruling that the claimants had not been unlawfully victimised by reason of making protected disclosures. Appeal allowed and ET finding restored.
For a summary of the ET and EAT judgments, [follow this link.]()
The employer challenged the EAT's analysis on issues of vicarious liability and the causation test. On the first ground, it was submitted that the EAT erred in law in holding that the employer could in principle be vicariously liable for acts of victimisation of its employees in circumstances where the employees had committed no legal wrong. The Court of Appeal found that the EAT had erred; the House of Lords in Majrowski unambiguously held that an employer could be vicariously liable only for the legal wrongs of its employees. It followed that, absent any legal wrong, there was no room for the doctrine of vicarious liability to operate. The EAT had followed the case of Cumbria which was wrongly decided. On the second ground it was submitted that i) the reasoning of the Employment Tribunal demonstrated that even if the EAT was correct in concluding that the employer could discharge the burden of proof only by showing that the making of the protected disclosure played no part whatsoever in the relevant acts or omissions, that onus was plainly discharged here; and ii) the proper test in this context was not whether the decision was materially (in the sense of more than trivially) influenced by the proscribed reason but, as in unfair dismissal cases, it was whether the proscribed reason was the sole or principal reason for the action taken - the EAT was wrong to draw analogies between the whistle blowing legislation and domestic legislation. The Court of Appeal agreed with the first submission, saying that the reasoning of the ET demonstrated that they did not think there was any causal connection between the protected act and the respondent's acts or omissions to act. The only proper reading of the ET decision was that the Tribunal accepted that the protected disclosure did not play a part in the decision to re-deploy 2 of the claimants and deny 1 claimant the opportunity to work. Two further grounds advanced by the claimants were rejected and the finding of the ET, that there was no breach of s47B of the ERA, was restored.
Neutral Citation Number:  EWCA Civ 1190
Case No: A2/2010/2919/EATRF
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM the EMPLOYMENT APPEAL TRIBUNAL
HHJ SEROTA QC, Professor S R Corby and Mr I Ezekiel
Royal Courts of Justice
Strand, London, WC2A 2LL
LORD JUSTICE MUMMERY
**LORD JUSTICE ELIAS
LORD JUSTICE DAVIS
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NHS MANCHESTER (Appellant)
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FECITT & ORS (Respondents)
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PUBLIC CONCERN at WORK (Intervener)
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Mr Thomas Linden QC and Mr James Boyd (instructed by Messrs Hill Dickinson LLP) for the Appellant
Ms Daphne Romney QC and Ms Yvette Budé (instructed by Messrs Gorvins Solicitors) for the Respondents
Mr Robin Allen QC (instructed by the Intervener, Public Concern At Work)
Hearing date: 6 October 2011
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Lord Justice Elias :
- After a 12-day hearing in the Employment Tribunal in Manchester in the Autumn of 2009, the Tribunal held that the claimants (as I will continue to call them although they are the respondents to this appeal) had not been unlawfully victimised by their employers, the NHS Manchester ("the Employer") contrary to section 47B of the Employment Rights Act 1996, for making a protected disclosure. The claimants successfully appealed to the Employment Appeal Tribunal ("the EAT") on two grounds. First, the EAT appears to have concluded that the Employment Tribunal did not apply, or may not have properly applied, the appropriate test in determining whether or not detriments suffered by the claimants were because of the protected disclosures. Second, the EAT held that the Tribunal had failed to consider whether or not the Employer was vicariously liable for acts of its employees directed against the claimants amounting to victimisation for making the protected disclosure. The matter was remitted to the same Employment Tribunal to reconsider its decision in the light of the EAT ruling. The Employer now appeals against the EAT judgment and seeks to have the order of the Employment Tribunal reinstated.
- In addition to representation by the parties, we have had the benefit of both written and oral submissions from Mr Allen QC, acting for the Interveners, Public Concern at Work. This is a charity which describes itself as "the whistle blowing charity" and advises employers and workers. Amongst other things it provides a free advice line to workers who are concerned about some wrongdoing at work and do not know what they should do about it.
The statutory provisions.
- The Public Interest Disclosure Act 1998 inserted a new Part IV A into the Employment Rights Act 1996. The long title to the Act describes it as:
"An Act to protect individuals who make certain disclosures of information in the public interest: to allow such individuals to bring action in respect of victimisation; and for connected purposes."
I shall refer to individuals who make such public interest disclosures in good faith as "whistleblowers", as they are colloquially known.
- In summary form the statute operates as follows. A worker has the right not to be subjected to an act of victimisation by his employer for making what is termed "a protected disclosure". A protected disclosure is a qualifying disclosure as defined by section 43B of the 1996 Act. It is the disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show that certain wrongdoing may have occurred. This includes, for example, that there may be or may have been a criminal offence committed, or a miscarriage of justice, or that the health and safety of a person has been or may be adversely affected. The disclosure must be made in good faith to an appropriate person which includes, by section 43C, an employer.
- Section 47B then provides as follows:
"(1) 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.
(2) Except where the worker is an employee who is dismissed in circumstances in which, by virtue of section 197, Part X does not apply to the dismissal, this section does not apply where—
(a) the worker is an employee, and
(b) the detriment in question amounts to dismissal (within the meaning of that Part).
- There are a number of features to note about this section. First, the protection is given to workers and not merely employees. The concept of worker is widely defined in section 43K and includes, for example, agency workers. Second, the worker is protected only against acts or omissions by his employer. There is no separate protection afforded to acts of victimisation perpetrated by fellow workers. Third, where the complaint is that there has been an omission or failure to act, it will need to be a deliberate failure in order to attract the protection of this section. Fourth, the detriment suffered by the worker must be done on the ground that he has made a protected disclosure. Fifth, in the case of employees, but not those workers who are not employees, where the detriment of which the employee complains takes the form of a dismissal then the protection is afforded not by section 47B but by the unfair dismissal provisions in Part X of the 1996 Act. The unfair dismissal provisions were amended by the 1998 Act and a new section 103A was inserted as follows:
"An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure."
- It is to be noted that in the dismissal context it is expressly provided that the protected disclosure must be the reason or the principal reason for the dismissal before that dismissal can be found to be automatically unfair. A question which arises in this case is whether the same test should be applied to a worker who is subject to a detriment short of dismissal in order to determine whether he or she can succeed in a claim under section 47B.
- In cases where the whistleblower is complaining that the employer has subjected him to a detriment short of dismissal, section 48(2) provides that the onus is on the employer to show the ground on which any act, or failure to act, was done.
- The claimants are registered nurses with many years of clinical experience. They were working at the Walk-In Centre at Wythenshawe, Greater Manchester. Mrs Fecitt was a clinical co-ordinator for Walk-In Centres with managerial responsibility for the nursing staff at Wythenshawe. Mrs Woodcock was a primary care nurse who worked principally, but not exclusively, at Wythenshawe. Mrs Hughes was a bank nurse. She generally worked 12 hour shifts per week at Wythenshawe but she also held a part time position at a GP practice elsewhere.
- In early 2008 Mrs Woodcock was concerned about the fact that a fellow colleague working as a general nurse, Mr Daniel Swift, was making what she believed to be false statements to other members of staff about his clinical experience and qualifications. For example, she heard him tell a student nurse that he had been a charge nurse in Accident & Emergency for 5 years whereas in fact Mrs Woodcock knew that he had only been qualified for about 5 years. She expressed her concerns to Mrs Fecitt who carried out some research and discovered that Mr Swift was only qualified as a children's nurse. Mrs Fecitt raised concerns about Mr Swift's lack of his professed qualifications to her line manager, Mrs Coates. The other two claimants supported Mrs Fecitt. It is not disputed that these were protected disclosures as defined by section 43A of the 1996 Act. They were qualifying disclosures within the meaning of section 43B(d) since all three claimants reasonably believed that their disclosures tended to show that the health and safety of individuals had been, or was likely to be, endangered, and they were made in good faith to their employer.
- Mr Swift acknowledged to Mrs Coates that he had exaggerated his qualifications to colleagues, although not to the Employer itself. He apologised and confirmed that his lies would not be repeated. Mrs Coates was prepared to leave it at that.
- The claimants were not satisfied with this response and sought to pursue the matter further. This caused certain dissatisfaction amongst some of their colleagues, who considered that they were subjecting Mr Swift to a "witch hunt". The workforce divided into three groups: those supporting Mr Swift, those siding with the claimants, and those who did not wish to take sides.
- Because of Mrs Fecitt's persistence in pursuing the matter, Mr Swift was interviewed again, this time by a Mrs Kerwin. Mr Swift in turn became extremely distraught; there were concerns about his mental state and he was threatening to commit suicide. Mrs Kerwin's view was the same as Mrs Coates', namely that Mr Swift had acknowledged his wrongdoing, given assurances that his conduct would not be repeated, and that the issue should not be taken any further.
- Mr Swift lodged a bullying and harassment complaint against Mrs Fecitt on 3 April 2008. He apparently indicated at one stage that he wished to withdraw the complaint, but there was a hearing nonetheless. The conclusion was that Mrs Fecitt had not been guilty of bullying or harassment, although questions were raised about her management style. The Tribunal categorically rejected the contention that Mr Swift had been encouraged to pursue that complaint by management.
- Mr Swift was for a while suspended from duty, and Mrs Fecitt made a formal complaint under the Employer's whistle blowing policy. The claimants were subjected to certain hostile and unpleasant acts as a result of continuing to pursue this matter. For the most part these acts were not specifically identified by the Tribunal but the claimants' claim forms allege that they were subjected to isolation and daily personal insults. The Tribunal did recount two incidents directed at Mrs Fecitt. At the end of March she had an anonymous telephone call threatening to burn down her house unless she withdrew her complaint about Mr Swift. Also her picture was displayed on Facebook in circumstances causing her distress.
- Senior management were concerned about the dysfunctional effect that these developments were having on the staff and tried to encourage the staff to work professionally with each other. The Tribunal concluded that no real attempt was made to identify the adverse behaviour to which the claimants had been subjected, nor did management consider whether it might be necessary to threaten disciplinary sanctions to prevent the situation from escalating.
- The atmosphere in the Centre deteriorated significantly. In May, Mrs Fecitt had her management functions removed from her. At about that time Professor Madhok, the Employer's Medical Director, reviewed the position. He produced an interim report in which he concluded that there were no concerns about Mr Swift's competence and his suspension was then lifted. In his final report, Professor Madhok agreed with Mrs Kerwin that no further action should be taken against Mr Swift, but he also found that Mrs Fecitt had been justified both in initially raising the matter and also in pursuing it to senior management level. He criticised management for not being sufficiently robust.
- All the claimants lodged grievances although only that of Mrs Hughes was ultimately pursued to a hearing. Her grievance was heard by Mrs Nixon, who found that Mrs Hughes had been subjected to treatment which had resulted in her being isolated and prejudiced. She also considered that management could have done more to prevent this. Although Mrs Nixon made no findings with respect to the other two claimants, the Tribunal were satisfied that had she done so, she would have reached the same conclusion about management's failings. The Tribunal concurred in that analysis.
- Subsequently, senior management removed Mrs Fecitt and Mrs Woodcock from the Wythenshawe Centre and they were redeployed elsewhere. At about the same time the Employer, acting through a Mrs Lake, stopped offering shifts to Mrs Hughes.
- Having set out the history, the Tribunal then summarised what it considered to be its essential factual conclusions in the following terms:
"There was, of course, far more evidence given to the Tribunal in relation to the relevant events than can be summarised in these reasons. However, having considered the totality of the evidence presented to it, the Tribunal makes the following findings of fact:-
(a) As accepted by the respondent, each of these claimants made protected disclosures during March/April 2008 which related to Mr Swift.
(b) As a direct result of those disclosures, the claimants were subject to unpleasant behaviour on the part of a number of members of staff at the Wythenshawe Walk-In Centre who were supportive of Mr Swift and who felt that the claimants, and in particular Mrs Fecitt, were subjecting Mr Swift to an unwarranted "witch hunt". The Tribunal was satisfied, as indeed were Professor Madhok and Mrs Nixon, that the claimants were justified in raising the issue relating to Mr Swift and to pursue it further when immediate line management decided to take no further action.
(c) Because of the "dysfunctional" (as found by management) situation at the Walk-In Centre which followed the protected disclosures made by the claimants, they were subjected to significant detriment, including in the cases of Mrs Fecitt and Mrs Woodcock, being removed against their wishes from the Wythenshawe Walk-In Centre.
(d) So far as Mrs Hughes is concerned, although there was some confusion as to whether she had herself decided not to work any more shifts or whether they were removed from her, the desire by Mrs Lake to reduce her hours to nil was, at least in part, related to the "dysfunctional" situation that existed at the Centre and which had resulted in Mrs Fecitt and Mrs Woodcock being redeployed.
(e) Management could and should have done more than it did to prevent the claimants from being subjected to the unpleasant and unwarranted behaviour on the part of other members of staff at the Centre who were supportive of Mr Swift."
- The claimants alleged that the actions taken against them were because they had made protected disclosures and were therefore in breach of their rights under section 47B of the 1996 Act. They complained not only of the positive acts taken by the Employer, namely the redeployment of Mrs Fecitt and Mrs Woodcock and the removal of shifts from Mrs Hughes, but also of the failure by the Employer to take proper steps to prevent victimisation by colleagues. They also alleged that quite separately from the question whether the Employer was personally liable for its actions, the Employer was in any event vicariously liable for the acts of victimisation perpetrated by fellow workers in the course of their employment.
The Employment Tribunal's conclusions.
- The Tribunal first considered what the proper test was to determine whether or not the victimisation had been "on the ground that" the claimants had made a protected disclosure. It rejected a contention advanced by counsel for the claimants that a "but for" test should be adopted to determine liability. So the fact that but for the disclosure the claimants would not have suffered the detriments they did was not enough to fix the Employer with liability. The Employer concluded that an act would only be "on the ground of" a protected disclosure within the meaning of section 47B if it could be said that the act (or deliberate omission) was because of the protected disclosure. This is adopting the "reason why" approach now recognised to be the appropriate test in the context of anti-discrimination provisions where the legislative formula is the same or very similar: see e.g. the well known passages in the judgment of Lord Nicholls in Nagarajan v London Regional Transport  ICR 877, 884E-F, and in Chief Constable of West Yorkshire v Khan  ICR 1065. These authorities were followed in the context of section 47B by Mr Recorder Underhill QC, as he then was, in London Borough of Harrow v Knight  IRLR 140, a decision expressly referred to by the Employment Tribunal in this case.
- Adopting this approach, the Tribunal held that the Employer had not breached section 47B. It first considered whether the Employer could be liable for its omission in failing adequately to prevent the situation arising whereby the claimants were subject to the acts of harassment from staff. The Tribunal held on the facts that it could not (para 38):
"It is not sufficient, in the Tribunal's judgment, to establish liability on the respondent simply because management either did not do as much as it could have done or was simply unsuccessful in its attempts to resolve matters. However hard management might try, there are sometimes situations that arise in the workforce following a protected disclosure having been made which are extremely difficult to control and prevent. Whilst a reasonable level of proactive engagement with a view to prevent such a situations continuing can be expected, any failings by management in this case to secure the desired result were not sufficient, in the Tribunal's judgment, to amount to a deliberate failure to act."
The Tribunal further held that any failure by the Employer to take appropriate steps was in any event not because the claimants had made a protected disclosure.
- The Tribunal then focused on the positive acts of the Employer and concluded that neither Mrs. Fecitt nor Mrs Woodcock had been redeployed away from Wythenshawe because they had made a protected disclosure (para 41):
"Equally, when the decision was made by management to redeploy Mrs Fecitt and Mrs Woodcock in June 2008 away from the Wythenshawe Walk-In Centre, that was because the situation at the Centre had rendered it "dysfunctional" such that their removal appeared to management to be the only feasible method of resolving the problem. It was not "because" the claimants had made protected disclosures, and was therefore not done "on the ground that" such protected disclosures had been made."
- The Tribunal did not spell out why management thought that the only feasible way of resolving the problem was to remove these two whistleblowers rather than those who had subjected them to acts of harassment. However, it was plainly satisfied that it was management's genuine view that this was the case.
- A similar conclusion was reached with respect to Mrs Hughes, notwithstanding that Mrs Lake, the manager who had ceased to offer her shifts, had, when taking advice as to whether she could do this, described Mrs Hughes as a "trouble causer." The Tribunal's conclusion was as follows (para 42):
"So far as the claimant Mrs Hughes is concerned, notwithstanding the email from Sarah Lake to HR dated 9 June 2008, the Tribunal was satisfied from the evidence that it was not "because" of Mrs Hughes's involvement in making the protected disclosures that Sarah Lake wished to reduce her bank shifts to nil but principally because of a negative view she held of Mrs Hughes which pre-dated the making of the disclosures and partly for the same reason that Mrs Fecitt and Mrs Woodcock were redeployed, namely to resolve the "dysfunctional" problem at the Centre. Accordingly, the failure to provide Mrs Hughes with further shifts was not "on the ground that" she had made a protected disclosure."
- Although the issue of vicarious liability had been raised with the Employment Tribunal, it made no ruling on whether as a matter of principle such liability could arise under this legislation where no liability is imposed on the workers nor, if it could, whether the Employer was vicariously liable on the facts of this case.
The appeal to the EAT.
- The EAT (HH Judge Serota QC presiding) considered three grounds of appeal. It peremptorily rejected an allegation that the Employment Tribunal had wrongly placed the burden of proof upon the claimants. The other two grounds, however, succeeded.
- The first was that the Employment Tribunal had not identified the appropriate standard of proof for determining whether a protected disclosure had been a reason for the detrimental treatment so as to give rise to liability under section 47B. In order to discharge the burden imposed on it, the EAT held that the Employer had to satisfy the Tribunal that the adverse treatment afforded to these claimants was "in no sense whatsoever" on the grounds that the claimants had made a protected disclosure. The EAT held that a broad view of the legislation should be taken in order to provide proper protection to whistleblowers. Furthermore it considered itself obliged to follow the decision of the Court of Appeal in Igen v Wong  ICR 931. That was a case of race discrimination in which Peter Gibson LJ, giving the judgment of the Court (Kennedy, Peter Gibson and Scott Baker LJJ), held that the "in no sense whatsoever" test was the requirement imposed by EU law in the Burden of Proof Directive 97/80 once a claimant had established a prima facie case of discrimination. (In fact, as Peter Gibson LJ made clear when dealing with some observations of Lord Nicholls in the Nagarajan case, if the proscribed reason played only a trivial part in the decision, so that it is not a material consideration, that would not create liability. The proscribed ground would have to be a material, in the sense of more than trivial, influence on the decision: see paras 35-37). The EAT recognised that the whistle-blowing legislation is home-grown and does not give effect to EU Directives as the discrimination laws do, but nonetheless considered that it was bound by the Igen decision to adopt the same approach. Surprisingly, having determined that this was the appropriate test for the standard of proof, the EAT did not then go on to analyse the Tribunal decision to see whether its approach was inconsistent with the application of this test. However, since it referred the case back to the Tribunal, the assumption must be that the EAT was not satisfied that the result would necessarily have been the same if the proper test had been identified and applied by the Tribunal.
- The second ground on which the claimants succeeded before the EAT was in relation to the question of vicarious liability. The EAT held that the employers would be vicariously liable for acts of victimisation by fellow employees directed at the claimants because they had made protected disclosures, provided these acts were committed in the course of employment. The EAT held that this was so notwithstanding that the employees are not themselves legally liable under the statute for their own acts of victimisation. In reaching that conclusion the EAT followed an earlier EAT decision, Cumbria County Council v Carlisle-Morgan  IRLR 314 (HH Judge Reid QC presiding), in which it was held that to find an employer vicariously liable in these circumstances was in accordance with the ruling of the House of Lords in Majrowski v Guy's and St Thomas' NHS Employer  UKHL 34;  1 AC 224. Since the Employment Tribunal had not analysed on the facts whether the employees had committed acts of victimisation in the course of their employment, the case was remitted to it to do so.
The grounds of appeal.
- The Employer challenges the EAT's analysis of both the issues on which it found for the claimants.
- First, the Employer submits that the EAT erred in law in holding that the Employer could in principle be vicariously liable for the acts of victimisation of its employees in circumstances where the employees had committed no legal wrong. I can deal with this ground very briefly. The House of Lords has unambiguously held that an employer can be vicariously liable only for the legal wrongs of its employees. In Majrowski Lord Nicholls defined vicarious liability as follows (para 7):
"Vicarious liability is a common law principle of strict, no-fault liability. Under this principle a blameless employer is liable for a wrong committed by his employee while the latter is about his employer's business. ..The primary liability is that of the employee who committed the wrong."
- Absent any legal wrong by the employee, there is no room for the doctrine to operate. Here, in contrast to the discrimination legislation where individuals may be personally liable for their acts of victimisation taken against those who pursue discrimination claims, there is no provision making it unlawful for workers to victimise whistleblowers. It was solely on the ground of such alleged victimisation that it was sought to make the Employer vicariously liable, and therefore the claim could not succeed. Of course, as Ms Romney, Counsel for the Respondents, submits, depending on the nature of the act of victimisation, the employee might be committing other wrongs for which the employer could be vicariously liable. For example, a course of harassment may give rise to liability under the Protection from Harassment Act and any assault would amount to a tort for which an employer might be vicariously liable. But no specific legal wrongs of this nature were either relied upon or established here, and indeed the Employment Tribunal would not have had jurisdiction to deal with them.
- The Cumbria case, which the EAT in this case followed, was wrongly decided. In Cumbria the EAT was under the misapprehension that the decision in Majrowski meant that the employer could be liable for acts of the employee committed during the course of his employment whether or not those acts constituted an actionable wrong against the complainant employee. That analysis was based on a misconception of what Lord Nicholls was saying in paragraph 14 of the Majrowski decision. He was there describing a line of reasoning adopted in a decision of the Australian High Court which, in paragraph 15, he said had now been firmly discarded in English law. He added in that paragraph that the principle that an employer was liable for the wrongs of his employees committed during the course of their employment was now "settled law." The principle underlying the doctrine is that the employee's wrong is imputed to the employer.
- It follows that, in my judgment, the EAT erred in following the Cumbria case and in remitting the issue of vicarious liability to the Employment Tribunal. Accordingly, this ground of appeal succeeds.
The causation test.
- The second ground of appeal is directed at the EAT's decision to remit to the Employment Tribunal the question of the employer's personal liability, apparently on the premise that the Tribunal had erred in its approach to causation.
- Mr Linden QC, counsel for the Employer, makes two points with respect to this ground. The first is that the reasoning of the Employment Tribunal demonstrates that even if the EAT was correct in concluding that the Employer could discharge the burden of proof only by showing that the making of the protected disclosure played no part whatsoever in the relevant acts or omissions, that onus was plainly discharged here.
- The second point is that the proper test in this context is not whether the decision was materially (in the sense of more than trivially) influenced by the proscribed reason but, as in unfair dismissal cases, it is whether the proscribed reason was the sole or principal reason for the action taken. Mr Linden submits that the EAT was wrong to draw analogies between the whistle blowing legislation and domestic legislation giving effect to EU law. In the latter context it is incumbent on a court to read the legislation compatibly with EU law and the "no sense whatsoever" test is adopted in EU Directives. But where there is no such requirement, the legislation should be given its domestic meaning even if that means that the same statutory language may be differently interpreted depending upon whether there is an EU context or not: see the observations of Lord Brown of Eaton-under-Heywood in R (Hurst) v London Northern District Coroner  2 AC 189 para 52, UKHL 13. Accordingly, the EAT was wrong to consider that it was obliged to follow the principles set out in Igen v Wong.
- Mr Linden submits that given that the test for the most extreme form of victimisation, namely dismissal, is whether the proscribed reason was the sole or the principal reason for the dismissal, it would be curious if the employer had to meet a stricter standard of proof where a detriment short of dismissal was relied upon.
- In my judgment, Mr Linden's first submission is correct. The Tribunal's decision shows that it was satisfied that the reasons given by the Employer for acting as it did were genuine and demonstrated that the fact that the claimants had made protected disclosures did not influence those decisions. The Tribunal noted in terms at the end of paragraph 39 of its decision that "there must be a causal connection between the protected act and the respondent's acts or omissions to act." Its reasoning thereafter demonstrates in my view that it did not think there was any such causal connection. The Tribunal explained that it was satisfied that although the Employers were open to criticism for not protecting the claimants more effectively than they did, their failure to act more robustly was not a deliberate omission and was not because the protected disclosures had been made.
- As to the positive acts complained of by the claimants, the Tribunal again found that two of the claimants were redeployed because it appeared to management to be the only feasible method of dealing with a dysfunctional situation. The EAT agreed with the observations of the Employment Tribunal to the effect that it is often extremely difficult to resolve the conflicts which sometimes arise within the workforce after a protected disclosure has been made. The fact that it was the claimants, the victims of harassment, who were redeployed was obviously not a point lost on the Tribunal. It was evidence from which an inference of victimisation could readily be drawn. But the Tribunal was satisfied that the Employer had genuinely acted for other reasons. Once an employer satisfies the Tribunal that he has acted for a particular reason - here, to remedy a dysfunctional situation - that necessarily discharges the burden of showing that the proscribed reason played no part in it. It is only if the Tribunal considers that the reason given is false (whether consciously or unconsciously) or that the Tribunal is being given something less than the whole story that it is legitimate to infer discrimination in accordance with the Igen principles. Here the Tribunal was satisfied that in redeploying Mrs Fecitt and Mrs Woodcock the Employer had acted in order to resolve the dysfunctional situation. I see no basis for going behind that finding which is essentially one of fact for the Employment Tribunal.
- Similarly with Mrs Hughes. It is true that there was the added feature here that she had been described as a trouble-maker which was consistent with her complaint that she was being denied the opportunity to work shifts because she was a whistleblower. But the Tribunal expressly referred to this and concluded that contrary to what that evidence might suggest, there were in fact other reasons why Mrs Lake took the action she did. The only proper reading of the decision, in my view, is that the Tribunal accepted that the protected disclosure did not play a part in that decision.
- It follows that, in my judgment, there is nothing in the Tribunal's decision which is inconsistent with the approach to the standard of proof adumbrated by the EAT. Strictly, therefore, Mr Linden's second point, challenging the EAT's analysis of causation, does not arise for determination and I will deal with it briefly. Suffice it to say that I agree with the submissions of Ms Romney, counsel for the claimants, that liability arises if the protected disclosure is a material factor in the employer's decision to subject the claimant to a detrimental act. I agree with Mr Linden that Igen is not strictly applicable since it has an EU context. However, the reasoning which has informed the EU analysis is that unlawful discriminatory considerations should not be tolerated and ought not to have any influence on an employer's decisions. In my judgment, that principle is equally applicable where the objective is to protect whistleblowers, particularly given the public interest in ensuring that they are not discouraged from coming forward to highlight potential wrongdoing.
- I accept, as Mr Linden argues, that this creates an anomaly with the situation in unfair dismissal where the protected disclosure must be the sole or principal reason before the dismissal is deemed to be automatically unfair. However, it seems to me that that is simply the result of placing dismissal for this particular reason into the general run of unfair dismissal law. As Mummery LJ cautioned in Kuzel v Roche Products Ltd  ICR 799 at para 48, in the context of a protected disclosure claim:
"Unfair dismissal and discrimination on specific prohibited grounds are, however, different causes of action. The statutory structure of the unfair dismissal legislation is so different from that of the discrimination legislation that an attempt at cross fertilisation or legal transplants runs the risk of complicating rather than clarifying the legal concepts."
- In my judgment, the better view is that section 47B will be infringed if the protected disclosure materially influences (in the sense of being more than a trivial influence) the employer's treatment of the whistleblower. If Parliament had wanted the test for the standard of proof in section 47B to be the same as for unfair dismissal, it could have used precisely the same language, but it did not do so.
Two further grounds.
- Ms Romney and Mr Allen advanced two further arguments which had not in fact been pursued before the EAT and which, if accepted, would necessarily involve a finding that the Employer was liable for a breach of section 47B. Both counsel urged the court to adopt their arguments to provide a solution to what they described as the gross injustice of the innocent claimant whistleblowers being subjected to a detriment when colleagues who had victimised them were not.
- Mr Allen highlighted certain features of this case which he said were, in the experience of the Interveners, not uncommon. First, notwithstanding that the claimants had made a justified disclosure, it was not treated as seriously as it should have been. Second, the claimants were victimised by colleagues. Third, that victimisation was not appropriately addressed by the employers. And finally, it was the claimants and not those about whom the disclosure was made, nor indeed those victimising the claimants, who suffered the detriment.
- The contention is that the law must have been intended to protect whistleblowers in these circumstances in order properly to protect the public interest. Since the decision of the Tribunal fundamentally failed to do that, its ruling must be flawed. It could not be consistent with the legislation to permit the Employer to act as it did here. However, the claimants and the Intervener sought to achieve that objective by different routes.
- Ms Romney, counsel for the claimants, accepts that the Tribunal had to ask the reason why the claimants were treated as they were, and that the imposition of a detriment is only "on the ground of" a protected disclosure where that disclosure is in fact a material reason motivating the employer. Her submission is that the only proper inference on the facts of this case is that the treatment of these claimants was because of the protected disclosure. She accepts that an employer can in a proper case take action against a worker who makes a protected disclosure in an unacceptable manner (as in Martin v Devonshires Solicitors or who acts in an unacceptable way in relation to a protected disclosure (as in Bolton School v Evans  ICR 641 (CA)). In such cases it is legitimate for a tribunal to find that although the reason for the dismissal was related to the disclosure, it was not in fact because of the disclosure itself. But this, she submits, is not such a case. It is not suggested that the claimants did anything untoward or improper. At all times they made proper disclosure in the public interest and yet they were not protected by their employers in the way they ought to have been. It would be unjust and contrary to the purposes of the Act to deny them the protection of the law.
- Ms Romney submits that justice is done once it is recognised that the dysfunctional situation and the making of the protected disclosures were so inextricably inter-linked that it was not possible for the employer to take action to resolve the former without necessarily engaging the latter.
- I disagree. I entirely accept that where the whistleblower is subject to a detriment without being at fault in any way, tribunals will need to look with a critical - indeed sceptical - eye to see whether the innocent explanation given by the employer for the adverse treatment is indeed the genuine explanation. The detrimental treatment of an innocent whistleblower necessarily provides a strong prima facie case that the action has been taken because of the protected disclosure and it cries out for an explanation from the employer.
- The consequence of Ms Romney's submission, however, is that there could be no explanation which the employer could offer in these circumstances which would relieve him from liability. The need to resolve a difficult and dysfunctional situation could never provide a lawful explanation for imposing detrimental treatment on an innocent whistleblower. I do not think that can possibly be right. It cannot be the case that the employer is necessarily obliged to ensure that the whistleblowers are not adversely treated in such a situation. This would mean that the reason why the employer acted as he did must be deemed to be the protected disclosure even where the Tribunal is wholly satisfied on the facts that it was not.
- Moreover, it will sometimes be an impossible objective. Frequently there will be contending parties who each claim to be whistleblowers. In this case, for example, Mr Swift would be a whistleblower if he complained that the acts of the claimants were damaging his health. In such circumstances if the parties cannot work harmoniously the employer will necessarily have to separate them and subject one of the whistleblowers to a detriment. It cannot be assumed that the first to blow the whistle necessarily deserves the fullest protection.
- There will also be cases where it will not be practicable to resolve the dispute by removing from the situation those who are unsympathetic to the whistleblowers because of the potential damage it will cause to business. They may be key personnel in the operation of the business.
- As both the Employment Tribunal and the EAT accepted, these are extremely difficult conflicts for an employer to resolve. This employer dealt with the situation inadequately as the Tribunal found, (and indeed may well have been in breach of the contractual obligation of employer and confidence owed to these claimants by failing to take more active steps to prevent harassment by colleagues). But the question here was whether the Employer had victimised these whistleblowers within the meaning of the statutory definition. The Tribunal concluded that it had not, and in doing so it was plainly fully alert to the fact that these claimants had been harshly treated by at least some colleagues. I therefore reject Ms Romney's submission on this point.
- Mr Allen adopts a more radical position. His analysis is as follows. First, he submits that the purpose behind the whistle blowing legislation, as its title indicates, is to provide protection (and he says full protection) in the public interest for whistleblowers. That requires not only that whistleblowers should be protected from being penalised by the employer for having made the disclosure but also that they should be protected from acts of harassment committed by fellow workers. If that is not done it will undermine the legislation and discourage workers from making disclosures where it is in the public interest that they should do so. He submits that this case provides an instructive example. If these claimants had appreciated how they would be treated as a consequence of making their disclosures, they would never have been willing to speak out. The public interest would have been undermined. He submits that in order to ensure that the proper effect is given to the legislative purpose, words should be added to section 47B so that it reads as follows:
" 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 …it undermines the protection to which he or she is entitled by the legislation and must have if the public interest is to be secured."
- Applying that principle to this case, he submits that the acts of the Employer so undermined the protection to which the claimants are entitled by the legislation that the acts must be treated as having been on the ground of the protected disclosure.
- In my judgment, this goes far beyond the legitimate role of the court in construing legislation. The purpose of a statute has to be gleaned from its language. Parliament has plainly chosen to protect whistleblowers from the acts and deliberate omissions of the employer. If the reason for the adverse treatment is the fact that the employee has made a protected disclosure, that is unlawful. But it is striking that no obligation is imposed on other workers not to take action against the whistleblower in these circumstances, particularly since employees are made so liable with respect to the discrimination legislation.
- Mr Allen is asking the court to remedy the lacuna he says exists in the legislation by extending the primary liability of the employer. In my judgment, that involves giving a wholly distorted meaning to the words which Parliament has employed. I have no doubt that when Parliament used the language "done on the ground that" it was intending that this would involve the consideration of the reason why the employer has taken the action which he has. Mr Allen's analysis gives those words no meaning. The employer will be liable to the employee even where he has acted for reasons wholly unconnected with the protected disclosure if in fact, looking at the matter objectively, the worker would be inadequately protected without imposing liability. The words which Mr Allen would read into the legislation are not there by necessary implication. They involve a wholesale re-writing of the statute. His premise, namely that Parliament must have intended to protect workers from the adverse effects of acts of victimisation by fellow workers, is not in my view sustainable given the language that Parliament has used. Nor does the long title help since it merely says that the Act is to protect whistleblowers; it gives no indication as to how full that protection is intended to be.
- Furthermore, as Mr Linden pointed out in argument, where the adverse act is dismissal itself then there is only protection where the proscribed reason is the reason or at least the principal reason for the dismissal. That falls short of affording the full and effective protection to the whistleblower which Mr Allen submits we should assume was intended.
- In my judgment, there is nothing surprising in Parliament considering that the principal protection which needs to be afforded to whistleblowers is from retribution by the employer. It may be that the particular interest groups with an interest in this legislation could agree protection to that extent but no further. This is of course mere speculation but in my view it shows why it would be inappropriate to assume that Parliament intended a fuller protection than naturally arises on the words of the statute. I therefore reject the submission that the Employment Tribunal erred in failing to give this construction to section 47B. I recognise why the claimants feel aggrieved. I accept too that Mr Allen may be right to say that if the Tribunal decision is allowed to stand, it means that on one view of the matter whistleblowers are inadequately protected. If so, for reasons I have given, any remedy must lie with Parliament.
- I would make one final observation about the Tribunal's reasons. There is no reasons challenge as such, and it would have been too late to raise it for the first time before this Court. In any event, I doubt whether any such challenge would have succeeded since the essential reasoning of the Tribunal is clear. I applaud the way in which the Tribunal encapsulated the essential findings in its decision. There is no need for a blow by blow rehearsal of the evidence, and indeed such an approach often obfuscates the issues rather than assisting the Tribunal to reach its conclusion. In addition, a Tribunal is entitled - and indeed should be encouraged - to explain its legal conclusions crisply and succinctly as this Tribunal did. But it would have assisted the appellate court's understanding of the issues, and would have demonstrated to the claimants that their sense of grievance had been fully appreciated, if a little more had been said about two features of the case. The first is the nature and extent of the adverse treatment which the Tribunal found had been meted out to these claimants by their work colleagues; and the second is why the Employer had concluded that the only feasible way of resolving the dysfunctional situation was to transfer Mrs Woodcock and Mrs Fecitt rather than others. So far as the latter aspect is concerned, I recognise that the issue is not whether that reason was a good reason but whether it was genuine, and the Tribunal concluded that it was. Nevertheless, it would have been more satisfactory from the point of view of both the claimants and the appellate courts, if that aspect of the reasoning had been fleshed out.
- For reasons set out in this judgment I would uphold the appeal and restore the finding of the Employment Tribunal that there was no breach of section 47B of the Employment Rights Act in this case.
Lord Justice Davis:
- I agree that this appeal should be allowed for the reasons given by Elias LJ.
- I had an amount of sympathy for the claimants, given what has happened to them. Ms Romney presented their case very forcefully. But she (rightly) accepted that the test to be applied under Section 47B was not simply an objective "but for" test: there was required an enquiry into the reasons why the Employer acted as it did. The Tribunal here correctly directed itself as to the approach required; and its factual findings cannot be said to be ones which were perverse or not properly open to it.
Lord Justice Mummery:
- I also agree.
Published: 28/10/2011 16:00