Fecitt and Others v NHS Manchester

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Elias,Lord Justice Davis,Lord Justice Mummery
Judgment Date25 October 2011
Neutral Citation[2011] EWCA Civ 1190
Docket NumberCase No: A2/2010/2919/EATRF
Date25 October 2011

[2011] EWCA Civ 1190

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

UKEAT/0150/10/CEA

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Mummery

Lord Justice Elias

Lord Justice Davis

Case No: A2/2010/2919/EATRF

Between:
NHS Manchester
Appellant
Fecitt & ORS
Respondents
Public Concern at Work
Intervener

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

Approved Judgment

Lord Justice Elias
1

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.

2

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.

3

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.

4

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.

5

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).

6

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."

7

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.

8

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 facts.

9

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.

10

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.

11

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.

12

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.

13

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.

14

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.

15

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....

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    ...liability for whistleblowing Under current legislation (and as confirmed by the Court of Appeal decision in NHS Manchester v Fecitt [2011] EWCA Civ 1190), there is no provision making it unlawful for employees to subject a colleague to acts of detriment. Because vicarious liability can only......
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2 books & journal articles
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