Employment Appeal Tribunal remits case of Inverness nursery whistleblower for reconsideration of losses

Employment Appeal Tribunal remits case of Inverness nursery whistleblower for reconsideration of losses

A former teacher at a nursery in Inverness who made protected disclosures about practices within the nursery and suffered detriment has won an appeal challenging the Employment Tribunal’s finding that a decision by the General Teaching Council of Scotland to investigate a complaint made by her employer broke the chain of causation leading to her losses.

Lindsay McNicholas, who had worked for the Care and Learning Alliance and its subsidiary Cala Staffbank before being forced to resign, argued that the ET had reached an incorrect conclusion on limiting her losses to the date of the GTCS decision to investigate further. The Tribunal had limited her losses to a date in February 2019 on the basis of novus actus interveniens.

The appeal was heard by Lord Fairley of the Employment Appeal Tribunal. Hari Menon of the English bar appeared for the appellant, and Neil McDougall of the Scottish bar for the respondents.

Wrong in law

In 2016, the appellant moved from England to Inverness to work at a nursery operated by the first respondent which provided nursery places for Highland Council. Following the making of the protected disclosures, the respondents made a complaint to the GTCS about the appellant’s fitness to teach, which was found by the Employment Tribunal not to have been made in good faith.

The Tribunal found that the respondents’ true motive for the GTCS referral was to appease the first respondent’s client, Highland Council. The Tribunal concluded, however, that a decision by the GTCS further to investigate the complaint was a novus actus interveniens that broke the chain of causation between the detriment of the complaint and the appellant’s losses.

As a consequence of the detriments to which she was subjected, the appellant’s health suffered and she was prescribed medication for stress and depression. She also moved back to live in England because she could no longer afford to live in Inverness. However, at a remedies hearing, the Tribunal limited her losses for future loss, injury to feelings, and psychiatric injury to a date in late February 2019 when the GTCS decided to investigate further.

Due to its conclusion about novus actus, the Tribunal also declined to make any award to the appellant in respect of pension loss or for her legal expenses in defending the GTCS proceedings. It was submitted for the appellant that the ET’s decision was wrong in law, and accordingly she sought to have the relevant paragraph of the Tribunal’s judgment set aside and the case remitted for reassessment.

Natural, reasonable consequence

In his decision, Lord Fairley began: “On the face of matters, the decision by the third party – the GTCS – further to investigate the allegations was not an independent, supervening cause of loss. Rather, it was a natural and reasonable consequence of the respondents’ wrongful act. The wrongful act remained the effective cause of the appellant’s loss.”

He continued: “The Tribunal’s conclusion on novus actus is also irreconcilable with its earlier findings in the liability Judgment that the joint GTCS referral by the respondents: (i) was not made in good faith; (ii) was based on allegations that probably had no real or genuine substance; (iii) was retaliation against the appellant for having made the protected disclosures about practices within the nursery; and (iv) was motivated by a desire to discredit the appellant and to appease Highland Council.”

In consideration of why the Tribunal made the decision it did, he said: “The Tribunal was, perhaps understandably, distracted by its uncertainty over what the final outcome of the GTCS proceedings would be and by its conclusions about the competence of the decision of the GTCS further to investigate the referral. Neither of those considerations was, however, a relevant or sufficient factual basis for concluding that the chain of causation was broken in February 2019.”

Lord Fairley therefore concluded: “I will therefore set aside paragraph 3 of the Tribunal’s Judgment of 29 November 2021 and remit the case to the same Tribunal. Given the time that has passed since the Tribunal last considered remedy in 2021, it may need to hear further evidence. In the course of the appeal hearing I was told, for example, that the GTCS proceedings have now apparently been resolved in the appellant’s favour.”

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