Whistle while you work

11 Nov 2011

Most employers will know that they can be held liable for the legal wrongdoings of an employee, so, for example, if an employee commits sexual harassments, the employer may well still be liable.  The Court of Appeal has now confirmed that the situation in protected disclosure ("whistle-blowing") cases is different.

The Public Interest Disclosure Act 1998, which inserted the protective provisions into the Employment Rights Act 1996, states that its purpose is to protect individuals who make certain disclosures of information in the public interest: to allow such individuals to bring action in respect of victimisation.

This statement of purpose does suggest that the protection offered is wide and all encompassing; however, this is not the case.

In order to make a protected disclosure a worker must disclose information which, in their reasonable belief, tends to show that certain wrongdoing may have occurred.  This includes, for example, that there may be or may have been a criminal offence committed, or a miscarriage of justice, or that the health and safety of a person has been or may be adversely affected.  The disclosure must be made in good faith, to an appropriate person.

If a worker's allegation satisfies the criteria of a whistle-blowing claim, they have the right not to suffer any detriment as a result of making that allegation; however, this right is limited by the wording of the Employment Rights Act 1996 which states a worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer on the ground that the worker has made a protected disclosure.

On first glance, it would seem that the purpose of the protection is to prevent victimisation by either the employer or fellow workers; however, the important phrase in the Employment Rights Act is "by his employer".  What happens if the detriment is inflicted by a colleague instead?

According to the Court of Appeal, in the recent case of Fecitt and others v NHS Manchester, the employer is not liable for acts carried out by a whistleblower's colleagues.  This means that, as long as the employer does not abstain from protecting the worker because of the worker's allegations or support the other workers in their victimisation of the whistleblower because of the whistleblower's allegations, the employer is not liable and the claim for detriment will fail.  In addition, there is no redress for the whistleblower against their fellow workers who perpetrated the victimisation or detriment, as the Public Interest Disclosure Act 1998 relates only to protection against detrimental acts by the employer, not the acts of fellow workers.

At first sight, this appears to be a very large loophole in the law for wayward employers who do not take the concerns of their workers seriously: the employer would simply allow the whistleblower's colleagues to make the whistleblower's life difficult until they leave.  Despite this, Tribunals will no doubt seek to protect whistle-blowing employees by making findings of fact that the detrimental action was carried out on behalf of the employer.