EAT considers whistleblowing and causation
In a recent case, the Employment Appeal Tribunal has considered the losses flowing from whistleblowing detriment and the effect of intervening acts.
In McNicholas v Care and Learning Alliance and another, the claimant was a teacher who had made protected disclosures about practices at the nursery where she worked. In response, the nursery complained about the claimant's fitness to teach to the General Teaching Council for Scotland (GTCS). The Tribunal found this was a malicious referral and an act of "revenge". However, after conducting an initial review, the GTCS decided to investigate the claimant. She brought Tribunal claims including a claim for unlawful detriment for making protected disclosures.
Tribunal decision
The Tribunal upheld her claim, making awards for past and future loss, injury to feelings and psychiatric injury. However, it calculated the awards to the date when the GTCS decided to investigate the Claimant's fitness to teach after its initial review of the referral. The Tribunal found this was an intervening act which broke the chain of causation between the respondents' actions and the Claimant's loss.
The Claimant appealed to the EAT.
EAT outcome
The EAT allowed the appeal and remitted the case for remedy to be re-assessed. The GTCS's decision to investigate the claimant had not broken the chain of causation. Given that the referral was malicious, the decision to investigate was a natural and reasonable consequence of the wrongful act which remained the effective cause of the claimant's loss.
Learning points
Whilst this case is unusual on its facts, it serves as a useful demonstration of the factors that will be taken into account when determining whether a chain of causation is broken. Whilst this is a whistleblowing claim, the same issue could also arise in respect of the assessment of compensation in unfair dismissal and discrimination claims.