Causation in Whistleblowing Cases

[Thanks to Rad Kohanzad, pupil at Old Square Chambers, for preparing this case summary]

The EAT has handed down its decision in Fecitt & ors v NHS Manchester, dealing with causation in whistleblowing cases.

The Claimants made protected disclosures which led to a breakdown of relationships with their colleagues. As a result of the "dysfunctional situation" at work because of the breakdown of relations, the Claimants were subjected to significant detriments by their coworkers, two of them were transferred out by managers and one had all working hours withdrawn (thus was effectively dismissed).

The employment tribunal held that there must be a direct causal connection between the protected disclosures and the detriments. They found that the detriments were a result of the dysfunctional situation rather than "on the ground that" (s.47B ERA) the Claimants had made protected disclosures. In other words, they viewed the breakdown of relations as an intervening act which broke the chain of causation.

The EAT, allowing the appeal, held that once less favourable treatment amounting to a detriment has been shown to have occurred following a protected disclosure, the employer has to prove that the treatment was "in no sense whatsoever on the ground of the protected disclosure", ie a more favourable approach to causation for employees.