Hari Menon Represents Claimant Awarded Over £399,000 in Six Year Whistleblowing Claim
McNICHOLAS v CARE AND LEARNING ALLIANCE & CALA STAFFBANK
The claimant, LM, brought a claim in September 2018 against R1 and its subsidiary, R2, alleging that she had been subject to whistleblowing detriment by both these former employers and that R2 had dismissed her unfairly for whistleblowing. LM claimed her treatment was because she had made protected disclosures concerning the care of autistic children at a nursery in a school she worked. The ET, sitting in Inverness, upheld LM’s claim. It found that the disclosures were protected under s.43B(1)(b) of the Employment Rights Act 1996 and that the school had proceeded to retaliate against her by asserting that the disclosures were false and that LM was “emotionally abusing” a child in her care and her family. This theme was then taken up by the respondents in subjecting LM to detriment, which included R1 forcing her to resign, and by R2 unfairly dismissing her. The ET found that one of the main detriments was the respondents referring LM to her regulatory body, the General Teaching Council for Scotland (GTCS), alleging “emotional abuse” of a child in her care. It found that the referral was not made in good faith but to discredit LM in order to pacify a major client, the Council which ran the school.
At the remedies hearing, ML contended that she was unable to work in the teaching profession because of the outstanding referral and also because her treatment by the respondents had caused her psychiatric injury. In its judgment on remedy in November 2021, the ET awarded LM just over £42,000. Its reasoning was that the decision of the GTCS, an independent statutory body, to take up the referral against LM, was a novus actus interveniens which broke the chain of causation. Accordingly, the respondents’ liability for LM’s loss stopped at the point when the GTCS decided proceed with the referral in February 2019.
On the sift, the EAT gave permission for the entirety of the Grounds of Appeal to proceed to a hearing. The appeal was allowed in full by Lord Fairley, sitting at the EAT in Edinburgh[1]. The Judge found that the ET erred in law. On the ET’s own findings, the referral was malicious. LM’s loss fell within the test for causation, which was of a natural and reasonable consequence of the wrongful act, being the referral to the GTCS by R1 and R2.
In a judgment of the ET delivered on 31st March 2025 following the remitted remedies hearing, LM was awarded just over £399,000, including interest and the grossing up element for tax. This was just shy of 10x the original award. Most of this was against R1 and R2 jointly. It included amounts for past and future loss of earnings, solatium of £16,000 for psychiatric injury, Vento award of £20,000, LM’s legal expenses of the liability hearing of £20,000 and a further amount for her legal expenses of the proceedings before the GTCS and related Judicial Review proceedings in the Court of Session.
[1] [2023] EAT 127 also reported in [2024] I.C.R. 45, [2023] I.R.L.R. 975
