UK: Burden of Proof in Whistleblowing Cases – A Greater Burden for Employers

The decision in the recent case of Fecitt & Others v NHS Manchester will make it more difficult for employers to defend whistleblowing cases. The EAT did not follow the existing case law on the burden of proof in whistleblowing cases, and instead applied the burden of proof guidelines for discrimination cases.

Background

The whistleblowing legislation protects employees from being dismissed or suffering any other detriment on the grounds that they have made a "protected disclosure" (i.e. "whistleblowing").

This case concerned detriment that was not dismissal.

The claimants were registered nurses who worked at an NHS walk-in centre. They informed their line manager they were concerned that a colleague's claims regarding his qualifications were not true. Their concerns were investigated but no action was taken. An unpleasant atmosphere ensued among the staff, threats were made to one of the claimants and the centre became dysfunctional. The claimants raised grievances but only one complaint was partially upheld. Subsequently, the first claimant was stripped of her managerial responsibilities, the second claimant was moved to another site and the third claimant, a bank nurse, was not given any more work.

The claimants brought whistleblowing claims. The Tribunal found that:

1. the claimants' concerns regarding their colleague's qualifications were a protected disclosure; and

2. the claimants had been subjected to a detriment by:

However, the claims failed on causation. The Tribunal held that the detriments they suffered were not because they had made protected disclosures, but because that was the "only feasible way" for the employer to put right the problems among the staff at the centre.

EAT decision

The EAT accepted the arguments put forward by the claimants, that:

1. since whistleblowing was a form of discrimination, whistleblowing "victimisation" claims should be assimilated with victimisation in other discrimination cases, and the same causation test should be applied; and

2. Parliament had sought to protect whistleblowers and that the courts should take a broad view of the provisions in order to afford them greater protection.

In light of this, the EAT followed the Court of Appeal's decision on the burden of proof in the race discrimination case Igen v Wong (2005), in which it was held that the employer had to prove that the treatment was "in no sense whatsoever" on the grounds of the employee's race or sex (as applicable). The EAT applied this test to subjecting a worker to a detriment on the grounds that they had made a protected disclosure. Namely, the employer must prove on the balance of probabilities that the protected disclosure played no more than "a trivial part" in the detriment the worker suffered.

Implications

Whistleblowing claims are particularly troublesome for employers, and not just because of the amount of time involved in investigating the legitimacy of whistleblowing allegations. These claims also bring with them the prospect of hefty legal costs, uncapped compensation and damage to the company's reputation. Last year, 1,700 tribunal claims involved allegations of whistleblowing. The implementation of the Bribery Act 2010, which comes into force in April 2011, is likely to result in a greater number of these claims being brought. Unfortunately for employers, following this EAT decision, it will be easier for employees to establish causation in whistleblowing cases where the detriment suffered is anything other than dismissal.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.