ON APPEAL FROM the EMPLOYMENT APPEAL TRIBUNAL
HHJ SEROTA QC, Professor S R Corby and Mr I Ezekiel
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE ELIAS
LORD JUSTICE DAVIS
| NHS MANCHESTER
|- and -
|FECITT & ORS
- and -
PUBLIC CONCERN at WORK
Ms Daphne Romney QC and Ms Yvette Budé (instructed by Messrs Gorvins Solicitors) for the Respondents
Mr Robin Allen QC (instructed by the Intervener, Public Concern At Work)
Hearing date: 6 October 2011
Crown Copyright ©
Lord Justice Elias :
The statutory provisions.
"An Act to protect individuals who make certain disclosures of information in the public interest: to allow such individuals to bring action in respect of victimisation; and for connected purposes."
I shall refer to individuals who make such public interest disclosures in good faith as "whistleblowers", as they are colloquially known.
"(1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.
(2) Except where the worker is an employee who is dismissed in circumstances in which, by virtue of section 197, Part X does not apply to the dismissal, this section does not apply where—
(a) the worker is an employee, and
(b) the detriment in question amounts to dismissal (within the meaning of that Part).
"An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure."
"There was, of course, far more evidence given to the Tribunal in relation to the relevant events than can be summarised in these reasons. However, having considered the totality of the evidence presented to it, the Tribunal makes the following findings of fact:-
(a) As accepted by the respondent, each of these claimants made protected disclosures during March/April 2008 which related to Mr Swift.
(b) As a direct result of those disclosures, the claimants were subject to unpleasant behaviour on the part of a number of members of staff at the Wythenshawe Walk-In Centre who were supportive of Mr Swift and who felt that the claimants, and in particular Mrs Fecitt, were subjecting Mr Swift to an unwarranted "witch hunt". The Tribunal was satisfied, as indeed were Professor Madhok and Mrs Nixon, that the claimants were justified in raising the issue relating to Mr Swift and to pursue it further when immediate line management decided to take no further action.
(c) Because of the "dysfunctional" (as found by management) situation at the Walk-In Centre which followed the protected disclosures made by the claimants, they were subjected to significant detriment, including in the cases of Mrs Fecitt and Mrs Woodcock, being removed against their wishes from the Wythenshawe Walk-In Centre.
(d) So far as Mrs Hughes is concerned, although there was some confusion as to whether she had herself decided not to work any more shifts or whether they were removed from her, the desire by Mrs Lake to reduce her hours to nil was, at least in part, related to the "dysfunctional" situation that existed at the Centre and which had resulted in Mrs Fecitt and Mrs Woodcock being redeployed.
(e) Management could and should have done more than it did to prevent the claimants from being subjected to the unpleasant and unwarranted behaviour on the part of other members of staff at the Centre who were supportive of Mr Swift."
The Employment Tribunal's conclusions.
"It is not sufficient, in the Tribunal's judgment, to establish liability on the respondent simply because management either did not do as much as it could have done or was simply unsuccessful in its attempts to resolve matters. However hard management might try, there are sometimes situations that arise in the workforce following a protected disclosure having been made which are extremely difficult to control and prevent. Whilst a reasonable level of proactive engagement with a view to prevent such a situations continuing can be expected, any failings by management in this case to secure the desired result were not sufficient, in the Tribunal's judgment, to amount to a deliberate failure to act."
The Tribunal further held that any failure by the Employer to take appropriate steps was in any event not because the claimants had made a protected disclosure.
"Equally, when the decision was made by management to redeploy Mrs Fecitt and Mrs Woodcock in June 2008 away from the Wythenshawe Walk-In Centre, that was because the situation at the Centre had rendered it "dysfunctional" such that their removal appeared to management to be the only feasible method of resolving the problem. It was not "because" the claimants had made protected disclosures, and was therefore not done "on the ground that" such protected disclosures had been made."
"So far as the claimant Mrs Hughes is concerned, notwithstanding the email from Sarah Lake to HR dated 9 June 2008, the Tribunal was satisfied from the evidence that it was not "because" of Mrs Hughes's involvement in making the protected disclosures that Sarah Lake wished to reduce her bank shifts to nil but principally because of a negative view she held of Mrs Hughes which pre-dated the making of the disclosures and partly for the same reason that Mrs Fecitt and Mrs Woodcock were redeployed, namely to resolve the "dysfunctional" problem at the Centre. Accordingly, the failure to provide Mrs Hughes with further shifts was not "on the ground that" she had made a protected disclosure."
The appeal to the EAT.
The grounds of appeal.
"Vicarious liability is a common law principle of strict, no-fault liability. Under this principle a blameless employer is liable for a wrong committed by his employee while the latter is about his employer's business. ..The primary liability is that of the employee who committed the wrong."
The causation test.
"Unfair dismissal and discrimination on specific prohibited grounds are, however, different causes of action. The statutory structure of the unfair dismissal legislation is so different from that of the discrimination legislation that an attempt at cross fertilisation or legal transplants runs the risk of complicating rather than clarifying the legal concepts."
Two further grounds.
" A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that …it undermines the protection to which he or she is entitled by the legislation and must have if the public interest is to be secured."
Lord Justice Davis:
Lord Justice Mummery: