[2025] EWCA Civ 1466

This court again considered the scope of section 47B as it then stood in Fecitt v NHS Manchester [2012] EWCA Civ 1190; [2012] ICR 372. The three claimants were nurses. They told their manager that they doubted the qualifications of a colleague. Their concerns were well-founded, but their employer decided to do nothing. Relations between staff deteriorated. Some of the staff felt that the claimants were subjecting the colleague to a ‘witch hunt’. Their employer acknowledged that the claimants had acted properly, but moved two of them to different jobs and decided to give no more work to the third, who was a bank nurse.

The claimants made claims to the ET, relying on section 47B, and their disclosure about the qualifications of the other member of staff. Part of their complaint was that other employees had been unpleasant to them because of their disclosure, and that the employer was vicariously liable for the conduct of those employees. The ET found that they had been subjected to unpleasant conduct as a result of the disclosure and that the employer could have done more to stop the conduct. It also held that the failure to protect the claimants was not because of the disclosure, and the move to different jobs and the decision to give no further work to the bank nurse were the only feasible ways to resolve problems in the workplace. The EAT allowed the claimants’ appeal. It held that the employer could be vicariously liable for acts of victimisation by fellow employees, and that the ET had failed to deal with this.

The employer appealed on two grounds. The first was that the EAT had erred in law in holding that an employer could in principle be liable for acts of victimisation when the claimants had committed no legal wrong. This court (Elias LJ, with whom Mummery LJ and Davis LJ agreed), allowed the employer’s appeal on both grounds. Elias LJ dealt shortly with first ground. He referred to a decision of the House of Lords in which it “unambiguously held that an employer can be vicariously liable only for the legal wrongs of its employees” (paragraph 32). He added, in the following paragraph, “Absent any legal wrong by the employee, there is no room for the doctrine to operate”. He drew a contrast with the discrimination legislation, under which a person may be personally liable for their acts of victimisation. There was no provision making it unlawful for workers to victimise whistleblowers. The claim could not therefore succeed.