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Articles Employment 2nd Oct 2023

Losses flowing from whistleblowing detriment  

The case of McNicholas v Care and Learning Alliance and others is an example of the way in which the Tribunal will consider losses flowing from a detriment.

Whilst working as a teacher at a nursery, the Claimant made protected disclosures about practices at the nursery. The nursery responded by making complaints about her to the General Teaching Council for Scotland (GTCS) relating to her fitness to teach. The Tribunal found that the nursery’s complaints were not made in good faith and were a malicious response to her protected disclosures. The Tribunal found that their true motive in making the whistleblowing complaints about the Claimant was to appease their client, Highland Council. The GTCS nevertheless, following an interim review, decided to further investigate the complaints into the Claimant.

The Tribunal awarded the Claimant only losses that arose prior to the date of the GTCS deciding to investigate the complaints as, from that point on, any consequences (eg financial losses and injury to feelings) resulted from the acts of the GTCS and not the acts of the nursery (or the other Respondents).

The Employment Appeal Tribunal overturned this decision on appeal.

The EAT found that the decision by a third party (GTCS) further to investigate the complaints was not an independent, supervening cause of loss. Rather it was a natural and reasonable consequence of the employer’s wrongful act. The detriments (i.e. the complaints to GCTS) remained the effective cause of the Claimant’s loss. The EAT stated that the Tribunal had, perhaps understandably, been distracted by its uncertainty over what the final outcome of the GTCS proceedings might be. However, that was not in the EAT’s view a relevant consideration.

The case was remitted to the Tribunal for it to consider an appropriate compensation award to the Claimant including losses falling after the date of the GCTS’ decision to pursue its investigation.

As with many Tribunal cases, the battleground is not always the issue of liability, but can often be the issue of remedies and in this case the question of causation: if loss is incurred, was it the Respondent who caused such loss?

If you have any queries in relation to whistleblowing, please contact a member of our Employment Law team.

Read the other topical article from our October Employment Law Update:

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The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.

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