Whistleblowing: between a rock and a hard place

Fecitt & ors v NHS Manchester is an interesting example of extreme care must be taken not to become ensnarled in complex and expensive whistleblowing  cases where there is no limit on compensation that can be awarded.

In this case a break down in staff relations resulted from Ms Fecitt complaining about another employee lying about his qualifications.  After an apology for exagerrating qualifications was received, no further action was deemed necessary.   This didn’t satisfy Ms Fecitt and rifts developed between those who supported Ms Fecitt in calling for further sanction, those who supported the other employee and those who didn’t want to get involved.

In the course of the employer trying get everyone to behave professionally towards each other, Ms Fecitt and her supporters suffered victimisation of varying sorts including anonymous phone calls and postings on Facebook.  They then complained to the Employment Tribunal about detriments suffered because of making a complaint about another employee.

The result?  Under ordinary unfair dismissal principles where this type of scenario usually arises, this would have been a question of whether there was a dismissal and whether the employer’s investigation and response to the incident was reasonable or not.  With the whistleblowing legislation, reasonableness is not the relevant test.  The question becomes focused on whether the employer can prove that the cause of the detriment suffered was ‘in no sense whatsover’ the making of the complaint.  The employer couldn’t overcome that hurdle.  Frankly, in cases like this any employer is going to find it difficult to overcome that hurdle.

Employers may find themselves unable to escape from between a rock and a hard place when trying to resolve such a dispute.  The key to escape is likely to be finding and recording very clearly a reason for any action taken towards any worker where the reason is in no sense whatsoever the making of the complaint.  That may often be difficult, but with a clear and logical approach may not be impossible and is probably necessary.

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