Whistleblowers are not protected against victimisation by fellow workers

The test was whether the protected disclosure was a material reason for the employer's treatment of the workers

NHS Manchester v Fecitt & Ors [2011] EWCA Civ 1190

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• Whistleblowers are not protected from bullying by colleagues
• The test for causation in whistleblowing cases is not that of cases of discrimination or unfair dismissal.
• The test in whistleblowing is whether the employer's treatment of the whistleblower is materially influenced by the protected disclosure.
• The Court of Appeal argued that if parliament wishes to protect whistleblowing workers from victimisation by other workers it must enact legislation for this.

The Public Interest Disclosure Act 1998 as inserted into Part IV A into the Employment Rights Act 1996 does not protect whistleblowing workers from the acts of fellow employees, and the employer will not be vicariously liable for these acts (although an employer's refusal to act to protect his worker would undermine the obligation to act in a manner maintaining trust and confidence and therefore justify the worker seeing the contract as undermined, resigning and claiming constructive unfair dismissal).

The test in whistleblowing is whether the employer's treatment of the whistleblower is materially influenced by the protected disclosure.

NHS nurses made protected disclosures about a colleague regarding false statements made about his qualifications and clinical experience. The disclosures resulted in the whistleblowers being bullied by colleagues. The situation deteriorated so much that the employer transferred the Claimants elsewhere.

The Court of Appeal decided in favour of the employer's appeal, that the Claimants were not unlawfully victimised by the employer on the grounds of the protected disclosures that they had made. The CA ruled that the transfers were a lawful response to what had become a dysfunctional situation in the health centre where the nurses worked. This ruling was made despite recognising that the NHS had failed to adequately protect the nurses from the bullying they had experienced before they were transferred.

The nurses asked for the Court of Appeal to interpret the legislation to protect them from victimisation by fellow workers, something the Court refused to do. It will be for a future government to decide whether to legislate an employer's vicarious liability for victimisation against whistleblowers by fellow workers

© 2011 Workrep