Whistleblowers not protected from bullying, court rules

Government under pressure to amend law to cover reprisals from fellow workers

The law protecting whistleblowers and public safety in hospitals is failing staff and patients, the Court of Appeal has found in a landmark case brought by three nurses against an NHS trust in Manchester.

One of the country's most senior employment judges said last week that it was "striking" that the 1998 Public Interest Disclosure Act protects whistleblowers from victimisation by their employer but does not extend to reprisals or bullying by fellow workers.

Lord Justice Elias's ruling comes as the public inquiry into high death rates at Mid Staffordshire NHS Trust highlights the crucial role whistleblowers play in protecting patients.

It is the first adverse judicial comment on the Act and puts pressure on the Government to amend it. Lawyers and public safety experts warned that fewer whistleblowers would speak out unless the Government "closed the loophole". Whistleblowers say they face financial and professional ruin and dispute government claims that those acting in good faith are fully protected.

Last night, the departments of Business and Health told The Independent that they would review the legal loophole highlighted in the judgment, which has ramifications for all workplaces.

The Health minister, Lord Howe, said: "We are considering whether we need to do more to protect whistleblowers following this judgment. It was a complex case."

Peter Walsh, of Action Against Medical Accidents, said: "This judgment is very worrying for patient safety. It seems any trust can now get away with it if the harassment of whistleblowers comes from employees rather than the trust directors themselves."

The case brought by the three nurses centred on a walk-in-clinic in South Manchester. They said they suffered bullying and harassment from colleagues when they blew the whistle on a member of their team who claimed to have qualifications he did not. Senior management eventually admonished the man but took no further action. Still concerned about patient safety, the nurses pursued their complaints, but were ignored, insulted and threatened by others in the team, which became dysfunctional. NHS Manchester responded by moving two of the whistleblowing nurses; the third, a casual, was no longer given shifts.

The nurses claimed at a 2009 employment tribunal that the trust's bosses had failed to protect them, as whistleblowers, from the harassment. They lost – but an appeal tribunal in 2010 ordered a retrial. The trust successfully challenged this at the Court of Appeal, which found that although the trust had inadequately protected the nurses from harassment, it was not because they were whistleblowers.

However, the three appeal judges sent a clear message to the Government that it was for politicians and not the courts to close the loophole. "Parliament has plainly chosen to protect whistleblowers from the acts and deliberate omissions of the employer. But it is striking that no obligation is imposed on other workers not to take action against the whistleblower in these circumstances," said Lord Elias.

"I recognise the claimants feel aggrieved. I accept that [their lawyers] may be right to say that if the tribunal decision is allowed to stand it means that on one view of the matter whistleblowers are inadequately protected. If so, any remedy must lie with Parliament," he added.

Public Concern at Work, a charity that provides legal advice to whistleblowers, said: "The law should reflect the very sensible position that individuals should be protected if they are victimised by their colleagues, if we want to encourage workers to speak up."

Case study 'I was victimised'

Jennie Fecitt

A nurse with 23 years' experience, Ms Fecitt was the clinical co-ordinator for three NHS Manchester walk-in centres. She was one of three nurses (the others were Felicity Hughes and Annie Woodcock) who claim they were bullied and victimised by fellow workers after they blew the whistle on a colleague who had claimed to have qualifications he did not.

"We were worried about our patients, who we have a duty to protect. It was a question of integrity: if he could lie about his qualifications, what else would he lie about? What we didn't know until the tribunal was that senior managers knew he didn't have the correct qualifications two years earlier and that a competence assessment was never carried out.

"But other nurses thought we were on a witch hunt and started shutting doors in our faces and ignoring us. My daughter received a threatening phone call. We kept reporting that we were being victimised, but nothing happened; we took out formal grievances but they were parked. Then me and Annie were redeployed and Felicity's hours were stopped. The tribunal acknowledged that NHS Manchester didn't do enough to stop the victimisation, but said the redeployment was about the malfunctioning team not whistleblowing. We have no regrets but employers may use our judgment to avoid protecting whistleblowers so I hope this will trigger immediate review of the legislation and Parliament will not put it on the back burner."

Suggested Topics
News
people'It can last and it's terrifying'
Sport
Danny Welbeck's Manchester United future is in doubt
footballGunners confirm signing from Manchester United
Sport
footballStriker has moved on loan for the remainder of the season
Sport
footballFeaturing Bart Simpson
PROMOTED VIDEO
Have you tried new the Independent Digital Edition apps?
News
ebooksAn unforgettable anthology of contemporary reportage
News
Katie Hopkins appearing on 'This Morning' after she purposefully put on 4 stone.
peopleKatie Hopkins breaks down in tears over weight gain challenge
Arts and Entertainment
Olivia Colman topped the list of the 30 most influential females in broadcasting
tv
News
Kelly Brook
peopleA spokesperson said the support group was 'extremely disappointed'
News
The five geckos were launched into space to find out about the effects of weightlessness on the creatures’ sex lives
i100
Life and Style
techIf those brochure kitchens look a little too perfect to be true, well, that’s probably because they are
Sport
Andy Murray celebrates a shot while playing Jo-Wilfried Tsonga
TennisWin sets up blockbuster US Open quarter-final against Djokovic
Arts and Entertainment
Hare’s a riddle: Kit Williams with the treasure linked to Masquerade
booksRiddling trilogy could net you $3m
Arts and Entertainment
Alex Kapranos of Franz Ferdinand performs live
music Pro-independence show to take place four days before vote
News
news Video - hailed as 'most original' since Benedict Cumberbatch's
News
i100
Life and Style
The longer David Sedaris had his Fitbit, the further afield his walks took him through the West Sussex countryside
lifeDavid Sedaris: What I learnt from my fitness tracker about the world
Arts and Entertainment
Word master: Self holds up a copy of his novel ‘Umbrella’
booksUnlike 'talented mediocrity' George Orwell, you must approach this writer dictionary in hand
News
i100
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs General

SQL Implementation Consultant (VB,C#, SQL, Java, Eclipse, integ

£40000 - £50000 per annum + benefits+bonus+package: Harrington Starr: SQL Impl...

SQL Technical Implementation Consultant (Java, BA, Oracle, VBA)

£45000 - £55000 per annum + Benefits + Bonus: Harrington Starr: SQL Technical ...

Head of IT (Windows, Server, VMware, SAN, Fidessa, Equities)

£85000 per annum: Harrington Starr: Head of IT (Windows, Server, VMware, SAN, ...

Lead C# Developer (.Net, nHibernate, MVC, SQL) Surrey

£55000 - £60000 per annum + Benefits + Bonus: Harrington Starr: Lead C# Develo...

Day In a Page

'I’ll tell you what I would not serve - lamb and potatoes': US ambassador hits out at stodgy British food served at diplomatic dinners

'I’ll tell you what I would not serve - lamb and potatoes'

US ambassador hits out at stodgy British food
Radio Times female powerlist: A 'revolution' in TV gender roles

A 'revolution' in TV gender roles

Inside the Radio Times female powerlist
Endgame: James Frey's literary treasure hunt

James Frey's literary treasure hunt

Riddling trilogy could net you $3m
Fitbit: Because the tingle feels so good

Fitbit: Because the tingle feels so good

What David Sedaris learnt about the world from his fitness tracker
Saudis risk new Muslim division with proposal to move Mohamed’s tomb

Saudis risk new Muslim division with proposal to move Mohamed’s tomb

Second-holiest site in Islam attracts millions of pilgrims each year
Alexander Fury: The designer names to look for at fashion week this season

The big names to look for this fashion week

This week, designers begin to show their spring 2015 collections in New York
Will Self: 'I like Orwell's writing as much as the next talented mediocrity'

'I like Orwell's writing as much as the next talented mediocrity'

Will Self takes aim at Orwell's rules for writing plain English
Meet Afghanistan's middle-class paint-ballers

Meet Afghanistan's middle-class paint-ballers

Toy guns proving a popular diversion in a country flooded with the real thing
Al Pacino wows Venice

Al Pacino wows Venice

Ham among the brilliance as actor premieres two films at festival
Neil Lawson Baker interview: ‘I’ve gained so much from art. It’s only right to give something back’.

Neil Lawson Baker interview

‘I’ve gained so much from art. It’s only right to give something back’.
The other Mugabe who is lining up for the Zimbabwean presidency

The other Mugabe who is lining up for the Zimbabwean presidency

Wife of President Robert Mugabe appears to have her sights set on succeeding her husband
The model of a gadget launch: Cultivate an atmosphere of mystery and excitement to sell stuff people didn't realise they needed

The model for a gadget launch

Cultivate an atmosphere of mystery and excitement to sell stuff people didn't realise they needed
Alice Roberts: She's done pretty well, for a boffin without a beard

She's done pretty well, for a boffin without a beard

Alice Roberts talks about her new book on evolution - and why her early TV work drew flak from (mostly male) colleagues
Get well soon, Joan Rivers - an inspiration, whether she likes it or not

Get well soon, Joan Rivers

She is awful. But she's also wonderful, not in spite of but because of the fact she's forever saying appalling things, argues Ellen E Jones
Doctor Who Into the Dalek review: A classic sci-fi adventure with all the spectacle of a blockbuster

A fresh take on an old foe

Doctor Who Into the Dalek more than compensated for last week's nonsensical offering