Meredith Hurst Wednesday, November 2, 2011
COURT OF APPEAL JUDGEMENT GIVES RISE TO CONCERN ABOUT EFFECTIVENESS OF LAW
A "Whistleblower" is the term used colloquially to describe a worker who discloses information in the public interest to their employer, or in certain circumstances, to an external regulatory body or other third party. The information disclosed must usually show in the worker's reasonable belief wrongdoing on the part of an employer or another party. The Public Interest Disclosure Act 1998 makes it unlawful for employers to victimise workers who make such "protected disclosures". However, a recent decision of the Court of Appeal, NHS Manchester v Fecitt and Others and Public Concern at Work  EWCA Civ 1190, has given rise to concerns that the Public Interest Disclosure Act 1998 as it is currently drafted does not provide adequate protection to whistleblowers.
NHS Manchester v Fecitt and Others and Public Concern at Workconcerns nurses at an NHS Walk-In Centre. Mrs Fecitt, who was the clinical co-ordinator at the Centre and two nurses became concerned about a colleague, who they believed was making false statements about his level of experience and qualifications. They raised this with management, and it was not disputed that the concerns amounted to protected disclosures, as all three individuals reasonably believed that the information they were providing to their employer tended to show that the health and safety of individuals had been or was likely to be endangered, and the disclosures of information were made in good faith.
A number of the staff at the Walk-In Centre considered that in raising their concerns Mrs Fecitt and her colleagues were conducting a "witch hunt" and were bullying the individual about whom the concerns had been raised. They were isolated and subjected to insults, including a threatening telephone call and abuse on Facebook. Mrs Fecitt and her colleagues were eventually transferred by management from the Walk-In Centre. Following this they presented complaints in the Employment Tribunal against their employer, alleging that it was responsible for the bullying they had been subjected to by other staff as a result of their making protected disclosures and had therefore subjected them to detriments under the Public Interest Disclosure Act.
The Public Interest Disclosure Act 1998 makes it unlawful for an employer to subject a worker to a detriment on the ground that a worker has made a protected disclosure. However, there is no reference to it being unlawful for a worker to subject another worker to a detriment on the ground that the worker has made a protected disclosure. As a consequence of this the Employment Tribunal found that NHS Manchester was not responsible for the actions of its staff under the Act and so could not be held responsible for their bullying of Mrs Fecitt and her two colleagues by other staff. It also found that the decision of the employer to transfer Mrs Fecitt and her two colleagues from the Walk-In Centre had been because of the deterioration of staff relationships in the Centre and had not been on the ground of the individuals making protected disclosures. The Claimants appealed to the Employment Appeal Tribunal. The Appeal Tribunal upheld the appeal. The employer then appealed to the Court of Appeal.
The Court of Appeal held that the Public Interest Disclosure Act did not make it unlawful for a worker to victimise another worker on the ground that the worker has made a protected disclosure. Nor did the Act make the employer vicariously liable for the actions of workers employed by it. Despite submissions on behalf of the Claimants and Public Concern at Work, the whisteblowing support charity that intervened in support of the appeal, that the Act should be construed in a way that ensured whistleblowers received adequate protection the Court of Appeal said that to do this would mean giving the wording of the Act an interpretation which it could not bear and that the Act would have to be amended by Parliament if it was to make it unlawful for individual workers to victimise co-workers for making protected disclosures.
The Court of Appeal also ruled on the correct test for determining whether a worker has been victimised by an employer on the ground that they made a protected disclosure. The Court held that there will be an unlawful detriment if the making of the protected disclosure materially influences (in the sense of being more than a trivial influence) the employer's treatment of the whistleblower.
The Court of Appeal's ruling means that there appears to be a significant gap in the protection afforded to whistleblowers under current legislation and the gap can only be remedied by Parliament. In view of the government's stated intention to explore ways of limiting the effect of legislation providing protection for employees there must be some doubt as to whether the Public Interest Disclosure Act will be amended to provide full protection to workers in the foreseeable future.
Partner and Solicitor-Advocate