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Causation in Whistleblowing Cases

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[Thanks to Laurie Anstis of Boyes Turner who is standing in for Daniel Barnett during holiday absence, and to Keira Gore of Outer Temple Chambers for preparing this case summary]

What is the test for causation in whistleblowing claims; is it the test that applies in discrimination cases or unfair dismissal cases?

The Court of Appeal in NHS Manchester v Fecitt & ors [2011] EWCA Civ 1190 held that it is neither. Rather, the correct test is: whether the protected disclosure materially influences (in the sense of being more than a trivial influence) the employer's treatment of the whistleblower.

The Claimants in this case were registered nurses employed by the Respondent in a medical walk-in centre. They made protected disclosures regarding a colleague who had made false statements to other members of staff about his clinical experience and professional qualifications. As a direct result of those disclosures they were subject to unpleasant treatment by a number of other members of staff. The working atmosphere became increasingly dysfunctional and the Claimants were removed from the centre (two claimants were redeployed; one ceased to do shift work at the centre).

The Court of Appeal, allowing an appeal by the employer, held that the Claimants were not unlawfully victimised for making protected disclosures. Although the employers were open to criticism for not better protecting the Claimants from unpleasant treatment, their failure was not a deliberate omission and was not because of the protected disclosures. Nor was the removal of the Claimants from the centre because of the protected disclosures; that action was taken because it appeared to be the only feasible method of addressing the dysfunctional situation in the centre.