UK: Whistleblowers - employers are not vicariously liable for victimisation by colleagues

The Court of Appeal has ruled that the law does not prohibit workers from victimising their colleagues for whistleblowing, and therefore an employer cannot be held vicariously liable for their acts.  The Court considered that it was not possible to read the necessary words into the legislation to provide this protection.   Public Concern at Work has since called for a government review of the legislation to ensure employees who blow the whistle are protected from retaliation from colleagues.

Of course employers should still ensure they take appropriate steps to protect a whistleblower in this situation.  An employer that fails to do so could be primarily liable for whistleblowing detriment in relation to its own deliberate failure to act.  It could also face claims for constructive dismissal or be found vicariously liable for colleagues' conduct that breaches the Protection from Harassment Act 1997.

The Court also confirmed the EAT judgment that  an employee claiming whistleblowing detriment need only show that the protected disclosure played more than a trivial part in the employer's reason for the treatment, and not that it was the core reason for the treatment. (NHS Manchester v Fecitt, CA)