Whistleblowing and the Importance of Causation – Guideline EAT Ruling

To succeed in a whistleblowing claim it is necessary to show not only that there has been a protected disclosure and a detrimental act but also that there is a causal link between the two. As an Employment Appeal Tribunal (EAT) ruling made plain, that last element is in many cases the hardest to establish.

In upholding a teacher’s whistleblowing claim, an Employment Tribunal (ET) found that she had made protected disclosures about practices within the nursery school where she worked. It also concluded that, as a result of making those disclosures, she had been subjected to detrimental treatment and that her dismissal was thus automatically unfair.

The ET found, amongst other things, that her joint employers had not acted in good faith when they referred her to a teaching disciplinary body. It doubted that there was any real or genuine substance to complaints made against her by other members of staff.

The ET took the view that the complaints were retaliation against her, driven by her disclosures, and that her employers were aware of this at the time of the referral. It found that the true motive for the referral was to discredit her disclosures and to appease the school’s principal client, a local authority.

When it came to assessing the value of her claim, however, the ET noted that, in the event, the body had decided to further investigate her fitness to teach. That decision, it found, was a new intervening act which broke the chain of causation between the employers’ detrimental act and her loss.

On that basis, the ET limited her awards for future loss, psychiatric injury and injury to feelings by reference to the date of the body’s decision. She was denied an award in respect of pension loss and the ET’s ruling also had serious consequences in terms of legal costs.

Upholding her appeal against that outcome, the EAT found that the body’s decision was not, on the face of it, an independent and supervening cause of her loss. Rather, it was a natural and reasonable consequence of the employers’ wrongful act in making the reference. That wrongful act remained the effective cause of her loss.

The ET’s ruling was also irreconcilable with its factual findings in respect of liability. On those findings, the referral was, in law, malicious in that it was made without proper cause and for improper purposes. The case was remitted to the same ET for reassessment of the teacher’s award in the light of the EAT’s decision.