Background: 

This case arose out of the remedies given by the Tribunal at first instance.  The Tribunal decided that the claimant, a teacher, had been subject to detriments as a result of protected disclosures.  The nature of the detriment related to an unfounded referral to the General Teaching Council about the claimant’s fitness to teach.  The disclosures made related to the care of a child with autism. 

The Tribunal made an award against the respondent for past and future loss, psychiatric injury and injury to feelings.   However, it limited the awards to losses prior to February 2019 which was the date in which the General Teaching Council decided to further investigate.  The reason for this was that the General Teaching Council’s decision was regarded as a novus actus interveniens (that it broke the chain from the detriment from the employer).  The claimant appealed this aspect of the decision. 

Outcome: 

The EAT allowed the claimant’s appeal.  The EAT outlined that basis of the novus actus interveniens principle was fairness; namely that it would be unfair to subject an employer to liability for the supervening actions of another.   However, where the wrongdoer’s conduct was such that it remained the effective cause of the loss then it would follow that there had been no break in the chain of causation.  On the facts, the EAT found that the General Teaching Council’s decision was not completely independent but rather was a natural consequence of the wrongful act of the employer.   The Tribunal’s decision that there was a break in the chain did not follow from the factual findings that the referral had not been made in good faith and that the allegations had no real substance.  Accordingly, the appeal was allowed and the case was remitted back to the Tribunal for a reassessment of compensation. 

Practical Guidance for Employers: 

This case demonstrates the application of the law surrounding causation to damages in the Tribunal.   In such a case, where there are independent bodies taking action the Tribunal will ask whether the action of the independent body (third party) is such that it is natural and reasonable.  In this case, the investigation was a natural consequence of the wrongful referral that had been made.  Therefore, it would be inappropriate to limit damages to a point only before the investigation from the independent body, the General Teaching Council.   

The full case is available here:
https://assets.publishing.service.gov.uk/media/65130fc83d3718000d6d0c1e/Lindsay_Anne_McNicholas_v_1__Care_and_Learning_Alliance_2__CALA_Staffbank__2023__EAT_127_.pdf