Three nurses: Ms Fecitt, Ms Woodcock and Ms Hughes were all employed by the NHS at the at the Wythenshawe Walk-In Centre, Manchester. They raised concerns in the form of a protected disclosure to their line manager, Mrs Coates, over another nurse, Mr Swift’s clinical experience and qualifications on grounds of possible health and safety risk to the public. It transpired that Swift had misled the centre and when Fecitt investigated, she found that he had only qualified as a children's nurse and did not have a dual qualification as he claimed, as both a registered children's nurse and registered adult nurse.
Coates discussed the matter with Swift but took no further action. However, this did not satisfy the claimants who continued to pursue the matter to the extent that some of their colleagues considered they were now engaging in a form of witch hunt against Mr Swift. But The Employment Tribunal did, however, conclude that Fecitt had acted appropriately.
From bad to worse
The relationships within the centre soured and the three nurses were subjected to unpleasant behaviour by other staff at the centre, prompting them to raise grievances. For example, on 31 March 2008 an anonymous call had been made to Fecitt in which an unknown male threatened to burn down her home if she did not drop her complaint against Mr Swift. The grievances were investigated but only one complaint was partly upheld. Fecitt then made a formal complaint under the employer’s whistleblowing policy. She was removed from her managerial responsibilities and she and Woodcock were deployed somewhere else. Hughes, a bank nurse, was given no further work.
The Employment Tribunal quoted from an email dated 9 June 2008 addressed to Bev Harper in the respondent's HR department sent by Mrs Lake, the former district nursing clinical lead. The email was in these terms:
"Bev, we have a bank nurse at the WIC. She works at weekends and has worked at the WIC for six years but has always declined permanent hours. I would like to reduce her bank to virtually nothing (trouble-causer) but she has already complained that we have reduced her hours and she has employment rights! Where do I stand? ..."
All three nurses claimed they had suffered detriments as a result of making a protected disclosure. The Employment Tribunal agreed that the nurses had made protected disclosures and that all three had suffered a detriment as a result of the actions by the members of staff and the management decisions to remove them from the centre. However it found that the detriment was not ‘on the ground that’ they had made a protected disclosure. The Employment Tribunal concluded that NHS Manchester’s actions had been the only way to resolve a dysfunctional situation.
The Employment Appeal Tribunal did not share this view and found that once less favourable treatment amounting to a detriment had been shown to have occurred following a protected disclosure it was for the employer to prove that on the balance of probabilities that the treatment was ‘in no sense whatever’ on the ground of the protected disclosure.
Implications for employers
This case has made it easier for employees to demonstrate a causative link between suffering detriment and a protected disclosure. Whistleblowing allegations can often lead to a breakdown in workplace relationships and employers should be careful to ensure that steps taken to rectify this would not amount to a detriment.
The full judgment can be viewed here
The People Bulletin is grateful to Bates Wells and Braithwaite for highlighting this case, a summary which first appeared in the firm’s Spring/Summer Employment Law update.