The Court of Appeal in Fecitt v NHS Manchester has ruled that employers are not vicariously liable for the workplace victimisation of whistleblowers, and that the law intended protection only against the action (or inaction) of employers.
The Court of Appeal reversed an Employment Appeals Tribunal decision that an NHS employer was vicariously liable for victimisation of a nurse who made a protected disclosure about a colleague’s allegedly inadequate qualifications and experience. The employer was not required to keep this disclosure confidential and as a result the nurse and two of her colleagues claimed they suffered victimisation and eventually redeployment as a solution to the resulting "dysfunctional" workplace atmosphere.
Many are thinking that this ruling, that where an employer could and should have done more to protect their staff and yet was not found liable for this form of victimisation, to be a worrying development. The risk now is that as a result there may be the sense amongst potential whistleblowers that the law does not protect them properly, inhibiting disclosure of wrongs within a business.
Published on 10/04/2012