Causation test in whistleblowing cases revisited 

7 December 2010

Kings Chambers' James Boyd was involved in the case of Fecitt & Others v NHS Manchester in which HHJ Serota Q.C. upheld an appeal involving the correct test of causation in whistleblowing cases.

The EAT confirmed in a judgment on 23rd November 2010 that once less favourable treatment has been shown to have occurred following a protected disclosure, the employer has to prove that the treatment was "in no sense whatsoever on the ground of the protected disclosure". In doing so the EAT adopted the test of causation within the law of victimisation in discrimination claims (presenting a lower hurdle for employees to overcome). This conclusion is contrary to other EAT authority which requires a higher causative hurdle, namely that the act of whistleblowing must be the main or proximate cause of the detriment  (see Aspinall v MSI Mech Forge). 

The Judgment can be found on the EAT website