NHS Manchester v Fecitt & Ors

NHS Manchester v Fecitt & Ors

The employer cannot be vicariously liable under section 47B for acts of victimisation by employees unless those acts constitute a legal wrong. The Employment Tribunal’s finding that the employer’s actions were not on the ground of the protected disclosure was a factual finding open to it. Section 47B is only infringed if the protected disclosure materially influenced the employer’s treatment, but here the Tribunal found it did not. The appeal is allowed and the Tribunal’s decision restored.

Parties
Appellant: NHS Manchester; Respondents: Fecitt & Ors; Intervener: Public Concern at Work
Jurisdiction
England and Wales
Judgment Date
25 October 2011
Procedural Posture
Appeal / Court of Appeal Judgment on Appeal From Employment Appeal Tribunal
Outcome
Appeal allowed; Employment Tribunal decision restored; no breach of section 47B found.
Legal Topics
Whistleblowing, Protected Disclosure, Victimisation, Vicarious Liability, Causation in Employment Law
Employment Law Whistleblowing Protected Disclosure Victimisation Vicarious Liability Causation in Employment Law

Case Brief

Summary, issues, holding and outcome

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Parties

NHS Manchester

Appellant

Fecitt & Ors

Respondents

Public Concern at Work

Intervener

Procedural Posture

Appeal / Court of Appeal Judgment on Appeal From Employment Appeal Tribunal

Legal Issues

  1. 1 Whether the employer was vicariously liable for acts of victimisation by fellow employees under section 47B of the Employment Rights Act 1996
  2. 2 What is the correct causation test for liability under section 47B—whether the protected disclosure must be the sole/principal reason or a material influence
  3. 3 Whether the Employment Tribunal erred in finding no breach of section 47B despite detriment to whistleblowers

Ratio Decidendi

The employer cannot be vicariously liable under section 47B for acts of victimisation by employees unless those acts constitute a legal wrong. The Employment Tribunal’s finding that the employer’s actions were not on the ground of the protected disclosure was a factual finding open to it. Section 47B is only infringed if the protected disclosure materially influenced the employer’s treatment, but here the Tribunal found it did not. The appeal is allowed and the Tribunal’s decision restored.

Court Disposition

Appeal allowed; Employment Tribunal decision restored; no breach of section 47B found.