The Burden of Proof in Whistleblowing: Fecitt and others v NHS Manchester: [2011] IRLR 111

Abstract

In Fecitt & Ors v NHS Manchester [2011] IRLR 111, the Employment Appeal Tribunal considered both the burden of proof and what it is that needs to be proved in whistleblowing cases for detriments short of dismissal. It decided that whilstleblowing was a form of victimisation and that therefore it was bound by Igen v Wong [2005] EWCA Civ 142, CA. The EAT held that once a claimant has proved that they have made a protected disclosure and suffered a subsequent detriment, section 48(2) Employment Rights Act (ERA) 1996 places the burden of proof on the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the ground of the protected disclosure. There are two equally controversial elements to the ratio decidendi of this case. The first involves the wording of section 47B ERA, which states, ‘A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure’. The EAT held that ‘on the ground that’ requires the employer to meet the ‘in no sense whatsoever’ causation test set out in the Barton guidelines (Barton v Investec Henderson Crosthwaite Securities Ltd [2003] ICR 1205, EAT) as affirmed in Igen.