When less favourable treatment amounting to a detriment follows a protected disclosure the employer must prove it was "in no sense whatsoever on the ground of the protected disclosure"

Fecitt & Ors v. NHS Manchester [2010] UKEAT 0150_10_2311

www.workrep.co.uk

    Helping You     About     Links     Contact     Site Info     HOME

• The burden of proof is on the employer to show that the detriment under s.47B ERA is not on the ground of any protected disclosures.
• Igen v Wong [2005] IRLR 258: it is for the Respondent to prove that the detriment is "in no sense whatever" associated with the protected disclosures.
• The ET should have dealt with the question of vicarious liability (Case remitted to same ET for a judgement)
• The Protection from Harassment Act 1997 is not the proper avenue for recourse regarding the detriments suffered.
• Igen v Wong [2005] IRLR 258 applied, Cumbria County Council v Carlisle-Morgan [2007] IRLR 314 followed.
• Aspinall v MSI Mech Forge Limited [2002] EAT/891/01 (the protected disclosure needing to be causative, the motive for the detrimental treatment)and London Borough of Harrow v Knight [2003] IRLR 140 not followed.
• Section 48(2)ERA: "it is for the employer to show the ground on which any act, or deliberate failure to act, was done" (the burden of proof is on the employer ).

The Employment Tribunal had ruled that the claimants suffered detriments resulting from the dysfunctional situation following the nurses' protected disclosures but held that bullying by colleagues amounted to a novus actus interveniens (an intervening act breaking the chain of causation) rather than resulting from protected disclosures and found against the whistleblowers. The EAT has overturned that decision and placed the burden of proof on the employer to show that the detriment is under s.47B ERA not on the ground of any protected disclosures.

The Claimant nurses had made a protected disclosure for health and safety reasons regarding another nurse's purported qualifications and after the general situation at work continued to deteriorate, were transferred or had hours withdrawn. One of the complainants had in turn a complaint made against her by the subject of the original H&S complaint, and threats and abuse were levelled against the nurses.

Before the ET the claimants relying on James v Eastleigh Borough Council [1990] IRLR 288 (race discrimination) wished to apply a "but for" test when determining whether they had suffered detriment "on the ground" of the protected disclosures. The claimants argued in the alternative that the protected disclosure had been made "caused or influenced the employer to act (or not to act) in the way complained of" (London Borough of Harrow v Knight [2003] IRLR 140). The claimants also argued that the employer was vicariously liable for the acts of an employee done in the course of his or her employment (Cumbria County Council v Carlisle-Morgan [2007] IRLR 314 ).

The Respondent relied on Aspinall v MSI Mech Forge Limited [2002] EAT 891/01 whereby the protected disclosure had to be causative, the real reason for the treatment. The ET found that the claimants were subjected to detriment by colleagues after making protected disclosures to the respondent but did not rule on the vicarious liability.

In the EAT the "but for" test was not followed by either side, with the claimant's barrister Mr Daniel Barnett arguing that the Respondent needed to prove that its decision to move/remove the claimants' work was "in no sense whatever" associated with the protected disclosures, that whistle-blowing was regarded as a form of discrimination and therefore the burden of proof should be the same as in other cases of discrimination and victimisation as per the cases of Woodward v Abbey National [2006] IRLR 677 and Virgo Fidelis Junior School v Boyle [2004] IRLR 268).

Barton v Investec [2003] ICR 1205 and the Court of Appeal case of Igen v Wong [2005] IRLR 258 ( Igen following the House of Lords case of Nagarajan v London Regional Transport [1999]) were followed in that it is for the Respondent to prove that the detriment is "in no sense whatever" associated with the protected disclosures. It was found necessary as a matter of public policy to apply this employee friendly test in order to increase protection for whistle-blowing employees.

HHJ SEROTA QC referred to Mummery LJ's comments about the importance of the burden of proof in Kuzel v Roche Products Limited [2008] EWCA Civ 380: "(when) being charged with a criminal offence, there is plenty to get worked up about. It is very important indeed. In many areas of civil law, however, the burden of proof is not a big thing. Discrimination law is an exception, because discrimination is so difficult to prove. In the case of unfair dismissal, however, there has never been any real problem for the tribunals in practice. The danger is that in cases like this something so complicated will emerge that the sound exercise of common sense by tribunals will be inhibited."

The principle of vicarious liability exists not because the employee is liable but because of what he has done (Lord Nicholls in Majrowski re Darling Island Stevedoring & Lighterage v Long (1957) 97 CLR 36) and the liability is imposed on the employer by ERA 47B.

Regarding causation this was approached in the context of sometimes contradictory cases in discrimination and victimisation law.

Oyarce v Cheshire County Council (CA) ruled for victimisation claims based on discrimination whereby the statutory reversal of the burden of proof did not apply. King v Great Britain-China Enterprises [1992] ICR 516 however decided that the Employment Tribunal "may" rather than "must" draw inferences against the respondent. The "but for" test might have had some relevance here after House of Lords in Rhys-Harper v Relaxion Group Plc [2003] IRLR 484 but was not argued. In Nagarajan v London Regional Transport [1999] IRLR 572 was quoted whereby, if "protected acts had a significant influence on the outcome, discrimination is made out."

Barton v Investec Henderson Crosthwaite Securities Limited [2003] ICR 1205 was relevant regarding the transfer of the burden under section 63A of the Sex Discrimination Act 1975 whereby, "(10) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since "no discrimination whatsoever" is compatible with the Burden of Proof Directive." "To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since 'no discrimination whatsoever' is compatible with the Burden of Proof Directive."

In House of Lords, Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065 the claimant was refused a reference after initiating legal proceedings.The claimant claimed he was victimised for his having done a protected act. Lord Nicholls stated, "The phrases 'on racial grounds' and 'by reason that' denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact." Lord Hoffman, "it is no answer that the employer would have behaved in the same way to an employee who had done some non-protected act, such as commencing proceedings otherwise than under the Act."

Villalba v Merrill Lynch [2006] IRLR 437 was quoted in that it follows Igen v Wong that reconciled approaches to causation.

Regarding vicarious liability Cumbria County Council v Carlisle-Morgan [2007] IRLR 314 was followed and that the ET needed to make a ruling on this. The EAT rejected the respondent's submission that the Protection from Harassment Act 1997 should be used by the claimants as not appropriate because of the more stringent requirements for claimants in establish liability for harassment under criminal law than under discrimination legislation.

Causation applies similarly in cases of victimisation for whistle-blowing and for discrimination despite the different sources of the originating law (for discrimination, EU directives, whistleblowing in UK law).

In closing HHJ SEROTA QC quoted the Court of Appeal's decision in Igen v Wong that, "once less favourable treatment amounting to a detriment has been shown to have occurred following a protected act the employer's liability under section 48(2) is to show the ground on which any act or deliberate failure to act was done and that the protected act played no more than a trivial part in the application of the detriment. That is the meaning of the test in Igen v Wong. The employer is required to prove on the balance of probabilities that the treatment was in no sense whatever on the ground of the protected act."

The claimants' appeal was allowed with the case remitted to the ET for judgment as to the question of causation and the employer's vicarious liability.