Fecitt & Ors v NHS Manchester [2010] UKEAT 0150_10_2311 (23 November 2010)

Fecitt & Ors v NHS Manchester [2010] UKEAT 0150_10_2311 (23 November 2010)

The correct test for causation in whistleblowing victimisation claims under s.47B Employment Rights Act 1996 is that, once a detriment is established, the employer must prove on the balance of probabilities that the treatment was in no sense whatsoever on the ground of the protected disclosure; a trivial influence is insufficient. The Employment Tribunal failed to apply this test and did not properly address vicarious liability for acts of employees.

Citation
[2010] UKEAT 0150_10_2311
Parties
Appellants: Ms Fecitt, Ms Woodcock, Ms Hughes; Respondent: NHS Manchester
Jurisdiction
United Kingdom
Judgment Date
23 November 2010
Procedural Posture
Employment Appeal / Appeal From Employment Tribunal Decision
Outcome
Appeal allowed; matter remitted to Employment Tribunal for reconsideration
Legal Topics
Victimisation, Protected Disclosure, Whistleblowing, Vicarious Liability, Burden of Proof, Causation
Employment Law Discrimination Law Victimisation Protected Disclosure Whistleblowing Vicarious Liability Burden of Proof Causation

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Parties

Ms Fecitt, Ms Woodcock, Ms Hughes

Appellants

NHS Manchester

Respondent

Procedural Posture

Employment Appeal / Appeal From Employment Tribunal Decision

Legal Issues

  1. 1 What is the correct test for causation under s.47B Employment Rights Act 1996 in whistleblowing victimisation claims?
  2. 2 Is the employer vicariously liable for acts of victimisation by employees following protected disclosures?
  3. 3 Where does the burden of proof lie in detriment claims under s.47B Employment Rights Act 1996?

Ratio Decidendi

The correct test for causation in whistleblowing victimisation claims under s.47B Employment Rights Act 1996 is that, once a detriment is established, the employer must prove on the balance of probabilities that the treatment was in no sense whatsoever on the ground of the protected disclosure; a trivial influence is insufficient. The Employment Tribunal failed to apply this test and did not properly address vicarious liability for acts of employees.

Court Disposition

Appeal allowed; matter remitted to Employment Tribunal for reconsideration

Orders

  • Remitted to the same Employment Tribunal to reconsider decision in light of this judgment, particularly on vicarious liability and causation