NHS Manchester v Fecitt and Others: CA 25 Oct 2011

The appellant challenged reversal by the EAT of a finding that it had not unlawfully victimised the respondents for the making of a protected disclosure. The claimant had reported a co-worker exaggerating his qualifications. After repeated investigations, the employer decided that the apology from the employee was enough. When the claimant persisted the employee who had been complained about themselves issued a grievance of harassment, and the disclosing employees were later removed.
Held: The employer’s appeal succeeded. The Cumbria case, followed by the EAT, was wrong. For the doctrine of vicarious liabilit to apply there had to be a legal wrong committed by the employee. That element was absent here (and in the Cumbria case).
The EAT had also erred in carrying across into this area of law, practices from discrimination and unfair dismissal law: ‘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.’
The consequences of the employee’s arguments would be that the employer would be able to take no steps to resolve a dysfunctional situation: ‘ 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. ‘
and ‘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. ‘

Mummery, Elias, Davis LJJ
[2011] EWCA Civ 1190, [2012] IRLR 64, [2012] ICR 372
Public Interest Disclosure Act 1998
England and Wales
CitedSwiggs and others v Nagarajan HL 15-Jul-1999
Bias may not be intentional
The applicant claimed that he had been denied appointment to a job with London Regional Transport because he had brought a number of previous race discrimination claims against it or associated companies. An industrial tribunal had upheld his claim . .
CitedChief Constable of West Yorkshire Police v Khan HL 11-Oct-2001
The claimant was a police sergeant. After many years he had not been promoted. He began proceedings for race discrimination. Whilst those were in course, he applied for a post elsewhere. That force wrote to his own requesting a reference. In the . .
CitedIgen Ltd v Wong CA 18-Feb-2005
Proving Discrimination – Two Stage Process
Each appeal raised procedural issues in discrimination cases, asking where, under the new regulations, the burden of proof had shifted.
Held: The new situation required a two stage process before a complaint could be upheld. First the claimant . .
CitedMajrowski v Guy’s and St Thomas’ NHS Trust HL 12-Jul-2006
Employer can be liable for Managers Harassment
The claimant employee sought damages, saying that he had been bullied by his manager and that bullying amounting to harassment under the 1997 Act. The employer now appealed a finding that it was responsible for a tort committed by a manager, saying . .
Wrongly DecidedCumbria County Council v Carlisle-Morgan EAT 29-Jan-2007
EAT A employed R as a support worker. R made a number of protected disclosures relating to a fellow worker’s conduct towards a client. The ET held various detriments were suffered by R on the ground of the . .
CitedHurst, Regina (on the Application of) v Commissioner of Police of the Metropolis v London Northern District Coroner HL 28-Mar-2007
The claimant’s son had been stabbed to death. She challenged the refusal of the coroner to continue with the inquest with a view to examining the responsibility of any of the police in having failed to protect him.
Held: The question amounted . .
CitedBolton School v Evans CA 15-Nov-2006
The appellant school ICT teacher had hacked into the school’s computer system, in order, he said, to demonstrate its weakness. He appealed against rejection of his assertion that his dismissal was unfair for being caused by his protected disclosure. . .
CitedKuzel v Roche Products Ltd CA 17-Apr-2008
The claimant had argued that she had been unfairly dismissed since her dismissal was founded in her making a protected disclosure. The ET had not accepted either her explanation or that of the employer.
Held: The employee’s appeal failed, and . .
CitedMartin v Devonshires Solicitors EAT 9-Dec-2010
C, a legal secretary in a firm of solicitors, as a result of mental illness makes false allegations against partners of discriminatory conduct (contrary to SDA and DDA) – Unwilling to . .
Appeal fromFecitt and Others v NHS Manchester EAT 23-Nov-2010
S.47B of the Employment Rights Act 1996 provides that ‘A worker has the right not to be subjected to any detriment by any act, or any deliberate . .

Cited by:
CitedBarclays Bank Plc v Mitchell EAT 11-Feb-2014
EAT Victimisation Discrimination : Whistleblowing – PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke – Employment Tribunal failed to explain sufficiently their reasoning on the causation issue . .
CitedShinwari v Vue Entertainment Ltd EAT 12-Mar-2015
EAT Victimisation Discrimination: Whistleblowing – VICTIMISATION DISCRIMINATION – Detriment – VICTIMISATION DISCRIMINATION – Dismissal – UNFAIR DISMISSAL – Constructive dismissal – Although the Employment . .

Lists of cited by and citing cases may be incomplete.


Leading Case

Updated: 11 November 2021; Ref: scu.447495