Employment Tribunal Judgment on Employer's Liability for Whistleblowing Claims, Ruled Incorrect

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Posted on 15 Nov 2023

Employment Tribunal Judgment on Employer's Liability for Whistleblowing Claims, Ruled Incorrect

The Employment Appeal Tribunal has ruled that an employment tribunal was wrong to decide that an employer’s liability for a teacher’s whistleblowing claims ended at the point when the General Teaching Council for Scotland decided to undertake an investigation into the teacher’s fitness to teach.

Ms McNicholas, a qualified teacher, made protected disclosures about nursery arrangements for a child with autism. An employment tribunal ruled that her employer had subjected her to a number of detriments as a result of making these disclosures, including referring her to the General Teaching Council for Scotland. The Tribunal considered that the referral had not been made in good faith, was based on allegations that probably had no real or genuine substance, and was an act of retaliation for the observations she had made about the practices at the nursery.

The employment tribunal awarded Ms McNicholas compensation, but ruled that her employer’s liability ended when, following its initial consideration of the complaint, the General Teaching Council decided to further investigate her fitness to teach. The Tribunal found that the Teaching Council’s decision was a new intervening act which broke the chain of causation between the employer’s detrimental action and Ms McNicholas's loss.

Ms McNicholas appealed successfully to the Employment Appeal Tribunal, which considered that the Tribunal had been wrong when it concluded that the decision by the Teaching Council to investigate the referral further was an intervening act that broke the chain of causation, so that the employer was no longer liable for the teacher’s losses. The Tribunal had found the referral was malicious, in that it was made without proper cause and for improper purposes. In those circumstances, the Teaching Council’s decision was the natural and reasonable consequence of the employer’s wrongful act and remained the effective cause of Ms McNicholas's losses.

The case was sent back to the employment tribunal to reassess compensation for future loss.

What does this mean for schools?

It goes without saying that schools should only refer teachers to the Teaching Regulation Agency where there are grounds for doing so. Referrals should never be made in retaliation for a teacher having blown the whistle.

Where a school is found liable in a whistleblowing claim, they will normally be liable for all of the employee’s losses. Only if there is an independent, supervening, cause of the loss will their liability come to an end.

McNicolas v Care and Learning Alliance and another

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Simon Henthorn

Simon is an expert in education and employment law. He has over 15 years’ experience advising schools, colleges, associations and individuals on all aspects of education law, including employment and safeguarding matters.

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Rose is an employment and education lawyer. She has a track record in providing measured employment law advice, and is also part of Doyle Clayton’s renowned Education Team, providing advice to teachers, professors and schools.

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