In McNicholas v Care and Learning Alliance and others, the Employment Appeal Tribunal (EAT) ruled that the Employment Tribunal (ET) erred in law in its conclusion about novus actus – Latin for ‘new intervening act’ – in a whistleblowing claim.
Facts
Ms McNicholas, a qualified teacher, was employed at an Inverness nursery by the Care and Learning Alliance and its subsidiary Carla Staffbank, together the respondents. Ms McNicholas' role was to provide relief staffing and support to early years children, and one-to-one support to children with Autistic Spectrum Disorder.
Ms McNicholas made protected disclosures concerning arrangements for the care of a child with autism, who attended the nursery. As a result, Ms McNicholas was forced to resign, and a complaint was made by the respondents to the General Teaching Council for Scotland (GTCS) about her fitness to teach, which the GTCS investigated.
Ms McNicholas brought a claim to the ET. The ET decided that the referral to the GTCS was retaliation against Ms McNicholas, motivated by a desire to discredit her. The tribunal doubted there was “any real or genuine substance” to the complaint, nor was the complaint made in good faith.
As a result of her treatment, Ms McNicholas health suffered, she was referred to her GP for counselling and had to move back to England because she could no longer afford to live in Inverness.
At a remedies hearing, awards were made against the respondents for past and future loss, injury to feelings and psychiatric injury. However, the ET limited the awards for future loss, injury to feelings and psychiatric injury to losses which occurred prior to GTCS’s decision to investigate the referral. The Tribunal took the view that the decision by GTCS to further investigate the referral was a novus actus interveniens which broke the chain of causation between the respondents’ detrimental actions and Ms McNicholas’ loss.
Ms McNicholas appealed to the EAT on the basis that ET was wrong in law to conclude that the GTCS investigation was a novus actus interveniens which broke the chain of causation, and that the awards should be reassessed.
Law
The rational for the principle that a novus actus interveniens breaks the chain of causation is fairness. It would not be fair to hold a wrongdoer liable for loss to a claimant, if such loss is not caused by the wrongdoer’s act of wrongdoing, but instead by some independent, supervening cause for which the wrongdoer is not responsible.
A novus actus interveniens must be the sole effective cause of the loss, such that the prior wrongdoing has been eclipsed so that it is not an effective or contributory cause in law. Where the wrongdoer’s conduct remains an effective cause of the loss, the chain of causation will not usually be broken.
Finally, if the act of the third party is a natural and reasonable consequence of the wrongful act this will not interrupt the chain of causation.
Decision
The EAT agreed with Ms McNicholas that the tribunal had erred in law in concluding that the decision by the GTCS to further investigate the referral was a novus actus interveniens.
The EAT held that the decision by GTCS to further investigate the allegations was not a supervening cause of loss, but rather a natural and reasonable consequence of the respondents’ wrongdoing. It was the wrongful act by the respondents, in reporting the claimant to the GTCS, which remained the effective cause of her loss.
The EAT sent the case back to the ET to reassess compensation for future loss.
Comment
Sean McEntee, Solicitor in our Employment team comments:
“Undoubtedly employers should only refer their employees to their respective regulators if there is genuine belief of wrongdoing or misconduct.
“Whistleblowing by an employee should be investigated properly, rather than provoking retaliatory action.
“If an employer is found liable for subjecting an employee to detriment for blowing the whistle, the employer will be liable for the losses stemming from that unless an independent, supervening cause of loss brings their liability to an end.”
Article published 23 January 2024.
