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
Sport
Raheem Sterling and Luis Suarez celebrate during Liverpool's game with Norwich
sport Another hurdle is out of the way for Brendan Rodgers' side
Arts & Entertainment
The original design with Charles' face clearly visible, which is on display around the capital
arts + ents The ad shows Prince Charles attired for his coronation in a crown and fur mantle with his mouth covered by a criss-cross of white duct tape
Sport
Steven Gerrard had to be talked into adopting a deeper role by his manager, Brendan Rodgers
sport LIVEFollow the latest news and scores from today's Premier League as Liverpool make a blistering start against Norwich
News
People White House officials refuse to make comment on 275,000 signatures that want Justin Bieber's US visa revoked
VIDEO
Have you tried new the Independent Digital Edition iPad app?
News
Sir Cliff Richard is to release his hundredth album at age 72
PEOPLESir Cliff Richard has used a candid appearance on an Australian talk show to address long-running speculation about his sexuality

Sport
Mourinho lost his temper as well as the match
sportLiverpool handed title boost as Sunderland smash manager’s 77-game home league run
News
The speeding train nearly hit this US politican during a lecture on rail safety
news As the saying goes, you have to practice what you preach
Sport
Mercedes Formula One driver Lewis Hamilton of Britain (front) drives ahead of Red Bull Formula One driver Daniel Ricciardo of Australia during the Chinese F1 Grand Prix at the Shanghai International circuit
sport Hamilton captured his third straight Formula One race with ease on Sunday, leading from start to finish to win the Chinese Grand Prix

Arts & Entertainment
Billie Jean King, who won the women’s Wimbledon title in 1967, when the first colour pictures were broadcast
tv
News
Snow has no plans to step back or reduce his workload
mediaIt's 25 years since Jon Snow first presented Channel 4 News, and his drive shows no sign of diminishing
Life & Style
food + drinkWhat’s not to like?
Voices
Clock off: France has had a 35‑hour working week since 1999
voicesThere's no truth to a law banning work emails after 6pm, but that didn’t stop media hysteria
Arts & Entertainment
Maisie Williams of Game of Thrones now
tvMajor roles that grow with their child actors are helping them to steal the show on TV
Arts & Entertainment
Kingdom Tower
architecture
Life & Style
Lana Del Rey, Alexa Chung and Cara Delevingne each carry their signature bag
fashionMulberry's decision to go for the super-rich backfired dramatically
Independent
Travel Shop
the manor
Up to 70% off luxury travel
on city breaks Find out more
santorini
Up to 70% off luxury travel
on chic beach resorts Find out more
sardina foodie
Up to 70% off luxury travel
on country retreats Find out more
Have you tried new the Independent Digital Edition iPad app?
Independent Dating
and  

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

iJobs Job Widget
iJobs General

Apprentice IT Technician

£150.00 per week: QA Apprenticeships: This company is a company that specializ...

1st Line Technical Service Desk Analyst IT Apprentice

£153.75 per week: QA Apprenticeships: This company is an innovative outsourcin...

1st Line Helpdesk Engineer Apprentice

£150.00 per week: QA Apprenticeships: This company has been providing on site ...

Sales Associate Apprentice

£150.00 per week: QA Apprenticeships: We've been supplying best of breed peopl...

Day In a Page

How I brokered a peace deal with Robert Mugabe: Roy Agyemang reveals the delicate diplomacy needed to get Zimbabwe’s President to sit down with the BBC

How I brokered a peace deal with Robert Mugabe

Roy Agyemang reveals the delicate diplomacy needed to get Zimbabwe’s President to sit down with the BBC
Video of British Muslims dancing to Pharrell Williams's hit Happy attacked as 'sinful'

British Muslims's Happy video attacked as 'sinful'

The four-minute clip by Honesty Policy has had more than 300,000 hits on YouTube
Church of England-raised Michael Williams describes the unexpected joys in learning about his family's Jewish faith

Michael Williams: Do as I do, not as I pray

Church of England-raised Williams describes the unexpected joys in learning about his family's Jewish faith
A History of the First World War in 100 moments: A visit to the Front Line by the Prime Minister's wife

A History of the First World War in 100 moments

A visit to the Front Line by the Prime Minister's wife
Comedian Jenny Collier: 'Sexism I experienced on stand-up circuit should be extinct'

Jenny Collier: 'Sexism on stand-up circuit should be extinct'

The comedian's appearance at a show on the eve of International Women's Day was cancelled because they had "too many women" on the bill
Cannes Film Festival: Ken Loach and Mike Leigh to fight it out for the Palme d'Or

Cannes Film Festival

Ken Loach and Mike Leigh to fight it out for the Palme d'Or
The concept album makes surprise top ten return with neolithic opus from Jethro Tull's Ian Anderson

The concept album makes surprise top ten return

Neolithic opus from Jethro Tull's Ian Anderson is unexpected success
Lichen is the surprise new ingredient on fine-dining menus, thanks to our love of Scandinavian and Indian cuisines

Lichen is surprise new ingredient on fine-dining menus

Emily Jupp discovers how it can give a unique, smoky flavour to our cooking
10 best baking books

10 best baking books

Planning a spot of baking this bank holiday weekend? From old favourites to new releases, here’s ten cookbooks for you
Jury still out on Manchester City boss Manuel Pellegrini

Jury still out on Pellegrini

Draw with Sunderland raises questions over Manchester City manager's ability to motivate and unify his players
Ben Stokes: 'Punching lockers isn't way forward'

Ben Stokes: 'Punching lockers isn't way forward'

The all-rounder has been hailed as future star after Ashes debut but incident in Caribbean added to doubts about discipline. Jon Culley meets a man looking to control his emotions
Mark Johnston: First £1 million jackpot spurs him on

Mark Johnston: First £1 million jackpot spurs him on

The most prize money ever at an All-Weather race day is up for grabs at Lingfield on Friday, and the record-breaking trainer tells Jon Freeman how times have changed
Ricky Gervais: 'People are waiting for me to fail. If you think it's awful, then just don't watch it'

Ricky Gervais: 'People are waiting for me to fail'

As the second series of his divisive sitcom 'Derek' hits screens, the comedian tells James Rampton why he'll never bow to the critics who habitually circle his work
Mad Men series 7, TV review: The suits are still sharp, but Don Draper has lost his edge

Mad Men returns for a final fling

The suits are still sharp, but Don Draper has lost his edge
Google finds a lift into space will never get off the ground as there is no material strong enough for a cable from Earth into orbit

Google finds a lift into space will never get off the ground

Technology giant’s scientists say there is no material strong enough for a cable from Earth into orbit