It is wrong that employers who do not do enough to protect staff from retaliation can hide behind their inaction and escape liability, says Jennie Fecitt
The need for a law to protect whistleblowers became clear after a series of disasters in the 1980s and 1990s. The Public Interest Disclosure Act aims to protect those who speak up in the public interest and allows whistleblowers to take action for victimisation, detriment or unfair dismissal. However, since it came into force in 1999, its interpretation has been diluted.
In my case, NHS Manchester v Fecitt & Others, I was one of three nurses at a walk-in centre who made protected disclosures to senior management over a colleague’s qualifications. NHS Manchester found our concerns were “perfectly justified and we were right to pursue the matter when senior management thought there was no necessity to take it further”. By then, workplace relationships had deteriorated. Our employer redeployed myself and another nurse against our will and gave no more work to our colleague, a regular bank nurse.
We made claims to the employment tribunal (ET) that we had been victimised by redeployment, loss of bank hours and being subjected to unpleasant treatment by nursing colleagues at the centre.
‘Under no circumstances should compromise agreements ever seek to prevent a departing employee from making a disclosure in the public interest’
The ET found we had made protected disclosures, been subjected to unpleasant behaviour as a direct result and suffered significant detriment. It said our employer could and should have done more to protect us. However, our claims were dismissed as the ET found management (albeit once) had tried to resolve the tensions in the team.
We appealed to the Employment Appeal Tribunal, which overturned the ET decision and set a precedent that would give greater protection to whistleblowers - it held that the test for victimisation was the same as that for discrimination. It also found the ET wrong in failing to consider whether our employer was vicariously liable for our colleagues’ treatment of us.
The trust appealed to the court of appeal. The court was sympathetic but allowed the appeal. It said although our employer should have done more to protect us, its decisions to redeploy us was not because of the whistleblowing and it was not vicariously liable for our colleagues’ retaliatory acts. It said the discrimination test should not apply to victimisation.
What alarmed me most about the ruling was that employers who do not do enough to protect staff from retaliation can hide behind their inaction and escape liability.
NHS Manchester applied for legal costs, which were granted. That was the price we had to pay for putting patients first. Many ask me if I would raise concerns again - my answer is yes. My duty is to my patient.
In my case, an NHS organisation pursued three nurses all the way to the Court of Appeal, using taxpayers’ money, because they believed they were not liable for colleagues’ retaliation. They considered minimal protection was reasonable.
I welcome the government’s bill to make employers vicariously liable for retaliation. However, whistleblowers need unequivocal protection from victimisation - the original intention of the act.
Although the DH has recognised the need for protection following the Francis report, more must to be done to ensure staff can question poor practice without fear of reprisal. Under no circumstances should compromise agreements ever seek to prevent a departing employee from making a disclosure in the public interest.
The DH and NHS England owe it to the public to put patients first and insist NHS bodies support whistleblowers so that, when concerns are raised, boards, managers and regulators sit up and take notice.
Jennie Fecitt is specialist practitioner, independent non medical prescriber and lead nurse, Patients First (UK)