The Court of Appeal has provided useful guidance on whistleblowing claims in its recent judgement in NHS Manchester v Fecitt and others.

In this case, the Claimants were nurses who were employed by the Respondent at a medical walk-in clinic. They made protected disclosures about a colleague who had made false statements regarding his qualifications and, as a result, they were subject to unpleasant treatment by other members of staff. In order to deal with the dysfunctional working environment, the Claimants were removed from the centre and were either redeployed or, in the case of one nurse who was a bank worker, not provided with further shifts.

The Court of Appeal held that the Claimants were not unlawfully victimised for making protected disclosures. Although the Respondent should have better protected them from the unpleasant treatment, its failure to do so was not deliberate or based on the protected disclosures. In addition, the Claimants were redeployed from the centre to deal with the dysfunctional situation and the fact that they had made protected disclosures played no part in the Respondent’s decision.

The judgement usefully clarifies that, where a worker has made a protected disclosure and their employer has subjected them to a detriment, the employer, in order to avoid liability under the whistleblowing legislation, needs to be able to show that making the disclosure did not materially influence the detrimental treatment.  In this case, it was clear that the reasons given by NHS Manchester for acting as it did were genuine and were not affected by the Claimants’ disclosures.

The Court also confirmed that an employer cannot be vicariously liable where employees victimise their whistleblowing colleagues. There is no provision in the whistleblowing legislation making it unlawful for an employee to victimise a whistleblowing colleague and vicarious liability can only arise where an employee has carried out an unlawful act.  The Court recognised that, depending on the nature of an employee’s actions, they may commit other unlawful acts for which the employer might be vicariously liable but none applied in this case.

The Court did acknowledge that its decision may leave whistleblowers inadequately protected but suggested that the legislation would need to be amended before whistleblowers were also afforded protection against their colleagues. The Public Concern at Work charity intervened in this case and has called for a government review of the legislation to ensure that other whistleblowers in similar situations are protected.