Was a tribunal entitled to conclude that an intervening act by a third party in a whistleblowing detriment claim broke the chain of causation between the detriment to the Claimant and the losses suffered as a consequence?
Not on the facts of this case, held the EAT in McNicholas v Care and Learning Alliance.
The Claimant was a teacher who made protected disclosures about practices at the respondent’s nursery where she worked. As a consequence of these disclosures she was subjected to detriments which included a complaint being raised by the Respondent to the General Teaching Council of Scotland (GTCS) regarding the Claimant’s fitness to teach. The tribunal concluded that the complaint to the GTCS was not made in good faith and was retaliation for the Claimant having made protected disclosures. The Claimant’s claim for detriment on grounds of whistleblowing accordingly succeeded but the tribunal concluded that when, after the initial referral to the GTCS had been made in bad faith, the GTCS took the decision that further investigation was required, this constituted an ‘intervening act’ such that the Claimant was unable to claim compensation for future loss or compensation for any period following the GTCS decision to investigate further.
The EAT disagreed with this conclusion – it held that for something to be an ‘intervening act’ which breaks the chain of causation it must become the sole effective cause of the loss, damage or injury suffered such that the prior wrongdoing, whilst it might still be a 'but for' cause, has been eclipsed so that it is not an effective or contributory cause anymore. This was not the situation in this case - the decision by the third party – the GTCS – further to investigate the allegations was not an independent, supervening cause of loss. Rather, it was a natural and reasonable consequence of the Respondents’ wrongful act. The wrongful act remained the effective cause of the Claimant’s loss.
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