Wed 20 Dec 2023

Regulator's decision to investigate did not justify reducing Employment Tribunal award

A recent Employment Appeal Tribunal (EAT), McNicholas v Care and Learning Alliance and Cala Staff Bank [2023] EAT 127, raised an interesting point arising from the not uncommon interface between employment tribunal proceedings and professional regulatory disciplinary proceedings.

In this case the Employment Tribunal (ET) upheld a claim brought by a teacher that she had been subjected to detriments on the grounds of making a protected disclosure as a whistle-blower.  One of the detriments was that her employer had made a referral to the General Teaching Council for Scotland (GTCS) in bad faith in retribution against the teacher for making her disclosures. The question of appropriate damages to be awarded then arose.

In considering this question the ET held that the GTCS's decision to further investigate the complaint was a new intervening act ("novus actus interveniens") that broke the chain of causation between the detriment of the complaint and the teacher's losses which she claimed in Tribunal.

The ET found that the impact upon the teacher's health and mental well-being of the ongoing GTCS proceedings could not be fully laid at the door of her employers once the GTCS were persuaded that there was sufficient material before them to establish a prima facie case requiring further investigation.

On appeal the EAT held that the ET erred in law in concluding that the decision by the GTCS to investigate the referral was a novus actus interveniens. On the facts found by it, that conclusion was not open to it.

The ET had erred in law by finding that the decision of the GTCS to investigate the referral was an independent, supervening cause of loss for which the employer was not responsible.  Rather, based on the evidence, the EAT held that the GTCS's action was a natural and reasonable consequence of the employer's bad faith referral which did not prevent the teacher claiming ongoing loss from her former employer.

The EAT also found that the ET’s conclusion on novus actus interveniens was also irreconcilable with their factual findings that the employers had effectively made a malicious referral to the GTCS without proper cause and for improper purposes.


Make an Enquiry

From our offices we serve the whole of Scotland, as well as clients around the world with interests in Scotland. Please complete the form below, and a member of our team will be in touch shortly.

Morton Fraser MacRoberts LLP will use the information you provide to contact you about your inquiry. The information is confidential. For more information on our privacy practices please see our Privacy Notice