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Employment Law: Government must amend law to protect whistleblowers from bullying

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Three nurses based in Manchester suffered bullying and victimisation at the hands of their colleagues after they made complaints about a member of staff who had lied about his qualifications.

While the law protects whistleblowers from reprisals from their employer, it does not extend to fellow employees, and when the nurses eventually lost their jobs through the treatment of their colleagues, they were not protected by employment law.

Jennie Fecitt, Annie Woodcock and Felicity Hughes worked at walk-in centres for NHS Manchester. After they blew the whistle on the colleague who had lied about his qualifications, they found themselves subjected to bullying by other colleagues, which resulted in the entire team becoming dysfunctional.

To solve the issue, NHS Manchester decided to move two of the nurses to different posts and the third nurse, who was a casual worker, had her shifts taken away from her.

Ms Fecitt said: "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 nurses took their case to an employment tribunal in 2009, but lost. However, in 2010 an appeal tribunal ordered a retrial. The Court of Appeal found that the trust had not adequately protected the nurses from bullying and harassment, but this was unrelated to them being whistleblowers.

The appeal judges claimed that it was for Parliament and not the courts to amend the law on protecting whistleblowers.

Lord Justice Elias said: "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.

"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."

Many health officials are now worried that patients' safety will be put at risk by the judgment and that whistleblowers will be discouraged from coming forward.

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."

But the judgment may force the Government to reconsider the law on whistleblowing.

Lord Howe, the health minister, said: "We are considering whether we need to do more to protect whistleblowers following this judgment. It was a complex case."

Related links:
Read more on the story (The Independent)
Read about protection of whistleblowers (FindLaw)
Find local employment solicitors throughout the UK (FindLaw)

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