Tuesday, 6 December 2011

Important Appeal case looking at causation in Whistleblowing cases

Charles Price, Barrister examines a new appeal case, NHS Manchester v Fecitt & Ors [2011] EWCA Civ 1190 which looks at the causation test in whistleblowing cases....

Neutral Citation Number: [2011] EWCA Civ 1190


The employer challenged the EAT's analysis on issues of vicarious liability and the causation test in whistle blowing cases.

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.

Answer: 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. 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."

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.

Second Ground:

Causation - 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:

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.

ii) the proper test in this context was not whether the decision was materially (in the sense of more than trivially) influenced by the prescribed reason but, as in unfair dismissal cases, it was whether the prescribed reason was the sole or principal reason for the action taken. 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:

Mr Linden QC counsel for the employer submitted 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 [2007] 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.

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.

The finding of the ET, that there was no breach of s47B of the ERA, was restored.

Charles is a Direct Access Barrister, which means that he can receive instructions from the public without recourse first to a Solicitor

contact: 07846 692325

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