Whistleblowing Detriment | McNicholas v Care & Learning Alliance

The Case

The Claimant was a teacher who made protected disclosures about practices at a nursery in which she was employed. 

She was subjected to detriments as a result of this.

Detriments included a complaint being raised by the Respondent to the General Teaching Council of Scotland (GTCS) regarding the Claimant’s fitness to teach. 

The ET concluded that the complaint to the GTCS was not made in good faith and was retaliation for the Claimant having made protected disclosures. 

The Claimant’s claim for detriment on grounds of whistleblowing accordingly succeeded.

However, the ET concluded that when the GTCS took the decision that further investigation was required, this constituted an ‘intervening act’ such that the Claimant was unable to claim compensation (for any period following the GTCS decision to investigate further).

This was despite the initial referral by the Claimant’s employer to the GTCS had been made in bad faith. 

The EAT disagreed with this conclusion – it held that for something to be an ‘intervening act’ which breaks the chain of causation it must become the sole effective cause of the loss, damage or injury suffered such that the prior wrongdoing, whilst it might still be a ‘but for’ cause, has been eclipsed so that it is not an effective or contributory cause any longer. 

In the present case this was not the situation. The decision by the third party (the GTCS) to further investigate the allegations was not an independent, supervening cause of loss. 

Instead, it was a natural and reasonable consequence of the Respondent’s wrongful act. 

The detriment remained the effective cause of the Claimant’s loss.