Hari Menon successfully represents Claimant in Whistleblowing Case

Hari Menon successfully represents the claimant teacher in a whistleblowing case on appeal to the Employment Appeal Tribunal concerning the issue of when a supervening event, for which a third party is responsible, breaks the chain of causation for the claimant’s loss (novus actus interveniens).

The claimant in a whistleblowing claim succeeded on liability, with the Employment Tribunal making a finding that her employers (both respondents) had made false allegations against her and used these as a basis for making a referral, in bad faith, to her professional body the General Teaching Council for Scotland (GTCS).

The Employment Tribunal found that this was in retaliation for the claimant’s whistleblowing and was a detriment;  further, that her dismissal by the 2nd respondent was also for this reason and automatically unfair. However, at the remedies hearing, the ET reduced the claimant’s compensation substantially on the basis that the decision of the GTCS, after initial investigations, to proceed with the referral, was a supervening event which broke the chain of causation of liability for the claimant’s loss.

The claimant successfully appealed this to the EAT, sitting in Edinburgh (Lord Fairley) which held that the ET’s conclusion that there was a supervening event was irreconcilable with its own findings of fact. On those findings by the ET, the referral to the GTCS by the employers was malicious and the decision of the GTCS to proceed with the referral was a natural and reasonable consequence of the employers’ wrongful act. The matter was remitted to the ET to reconsider issues relating to remedy in the light of the EAT’s decision.