Kelly sayers: Whistleblowing Put to the Test

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Legislation to protect whistleblowers is in place to enable employees to report wrongdoing in the workplace without fear of being victimised or losing any of their employment rights.

But what is the correct test to be applied in order to determine if a whistleblowing (protected disclosure) claim in respect of detrimental treatment or automatic unfair dismissal is justified?

According to the Court of Appeal (NHS Manchester v Fecitt and others*) the test is not necessarily deciding if the whistleblowing is the employer’s only or principal reason for acting in a detrimental way towards their employees, but whether the whistleblowing materially influenced (not just trivially) the employer’s treatment of the whistleblower(s).

So where does this leave employers? Although this approach is similar to that for determining whether a physical or mental impairment has a ‘substantial adverse effect’ for the purposes of disability discrimination, doesn’t it set the threshold too low and/or leave room for debate about whether the influence of the whistleblowing on the employer’s actions was sufficiently strong enough to be considered as ‘material’?

It is possible that, even after a substantial amount of time has elapsed, an employee will claim their earlier whistleblowing affected the employer’s actions towards them. However, although there is no strict time limit, generally, the greater the time lapse the more difficult it will be for an employee to make the assertion of ‘material influence’ with regard to any detrimental conduct towards them.

* NHS Manchester v Fecitt and others involved three nurses, Ms Fecitt, Ms Woodcock and Ms Hughes, who all worked at a walk-in centre. The three women made a protected disclosure about another colleague, Mr Swift, who was claiming to have qualifications and experience which he didn’t. Mr Swift later apologised and the employer agreed no further action would be taken.
However, Ms Fecitt, Ms Woodcock and Ms Hughes continued to pursue the matter, the result of which was deterioration in staff relationships and hostility towards the three women by their colleagues. Eventually, Ms Fecitt was removed from her managerial responsibilities and she and Ms Woodcock were re-deployed away from the walk-in centre. Ms Hughes, who was a bank nurse, was not given any further work by the employer.

Ms Fecitt, Ms Woodcock and Ms Hughes all brought employment tribunal proceedings alleging that they had been subject to a ‘detriment’ as a result of their protected disclosure.

The employment tribunal decided that whilst the three women had suffered ‘detriments’ by way of unpleasant behaviour by colleagues and also because of the centre’s decision to redeploy Ms Fecitt and Ms Woodcock, these ‘detriments’ were not “on the grounds” that the claimants had made a protected disclosure, but were the only “feasible way of resolving” the dysfunctionality of the walk-in centre.

However, the Employment Appeal Tribunal’s view was that it was up to the employer to prove that its actions (or any failure to act) were “in no sense whatsoever” because of the protected disclosure. The disclosure must play no more than a trivial part in causing the detrimental treatment.

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About KellySayers

Kelly Sayers, Partner and Head of Employment Services at law firm Prettys

As Head of Employment Services at Prettys, Kelly leads a highly experienced team advising on a full range of HR and employment related issues and helping clients through difficult and often complicated disputes.

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