Liability under the Act arises where the worker has either been dismissed or been subjected to a detriment by their employer for making a protected disclosure. The Court of Appeal in NHS Manchester v Fecitt and others  IRLR 64 (CA) considered the causation test in whistleblowing detriment cases and also whether an employer can be vicariously liable under the whistleblowing legislation.
In this case, three experienced nurses raised their concerns about the qualifications of another member of staff. It was accepted that it was proper to have done so and that the disclosures fell within the definition of protected disclosures. However, as a result of making the disclosures the claimants were subjected to hostile and unpleasant acts by other members of staff who supported the colleague. The claimants raised grievances which were only partially investigated but, as a result, two of the claimants were re-deployed and a third claimant was not given any more work as a bank nurse. The claimants complained to the employment tribunal that they had been subjected to a detriment as a result of making protected disclosures.
There was no dispute about the fact that the nurses had suffered detrimental treatment nor that they had made protected disclosures. The issue was whether there was a causal link between the two. The Court of Appeal felt that the test to be applied was whether the making of the protected disclosure materially influenced (meaning more than had a trivial influence on) the employer’s treatment of the whistleblower. In this case, the Employment Tribunal had clearly been satisfied that the reasons given by the employer for acting as it did were genuine and the fact that the claimants had made protected disclosures had no influence on its decision.
In addition, in order to succeed in their claims, the claimants would have to show that the employer was vicariously liable for the acts of the other individuals. There had been no suggestion that the employer itself had encouraged staff members in their actions. The liability under the legislation arises where the worker has been subjected to a detriment by the employer. This is an important distinction from the approach in other discrimination legislation whereby the employer is liable for detriment caused to one worker by another worker in the course of employment. There are no equivalent express provisions in relation to claims of victimisation on the grounds of making protected disclosures. In addition the Court of Appeal held that it is not possible to rely on common law vicarious liability under the whistleblowing legislation for acts of employees in the course of their employment. Vicarious liability arises where the employer is liable for the wrongs of employees, but only where the employees themselves have committed a legal wrong. Since the colleagues had not been guilty of contravening any legislation and therefore had not been committing any legal wrong, their employer could not be held vicariously liable for their actions. Obviously, the employer’s act or omission in failing to prevent the reprisals by colleagues or failing to address the grievance about reprisals which have happened may itself amount to a detriment. However on the facts of this case this was not the situation.
On the day of the court’s judgement, Public Concern at Work, the whistleblowing charity, called for a government review of the legislation to ensure that whistleblowers in such a situation are protected. It was concerned that the ruling would mean that an employer who does not do enough to protect staff can hide behind their own inaction. It also considered that if the law allows such actions then workers would remain silent rather than blowing the whistle in the public interest. Interestingly, on 18 October 2011, the Department of Health announced that changes will be made to the NHS constitution to ensure that NHS staff who raise concerns about proper patient care receive greater support.