A recent decision in the Employment Appeal Tribunal saw the legal doctrine of novus actus interveniens considered. This is where a new event occurring after an initial wrongdoing by a Respondent breaks the chain of harm suffered by a Claimant (chain of causation).

The decision in McNicholas v Care and Learning Alliance and Cala Staffbank was issued on 26 September 2023. This was an appeal of an Employment Tribunal judgement from November 2021.

The Appellant had been teaching in England since 1996. She then moved to Inverness in 2016 and began working for the second Respondent. In 2017 the Appellant began a second job with the first Respondent. The second Respondent is a subsidiary of the first Respondent.

The Appellant presented her claim in June 2018 arguing that she had been treated unfairly following the disclosure of protected disclosures. A Liability Hearing was conducted in 2019 and it was held that the Appellant had suffered detrimental treatment due to the protected disclosure made. The Tribunal found that:

1.       The first Respondent forced the Appellant to resign.
2.       The second Respondent dismissed the Appellant in an automatically unfair manner.
3.       Both Respondents complained to the General Teaching Council for Scotland (GTCS) about her ability to teach.

The Tribunal questioned the authenticity of the GTCS referral and ultimately viewed it as a retaliation to the protected disclosures made by the Appellant. A Remedies Hearing was conducted in 2021 where awards were made against the Respondents for past and future loss, injury to feelings, and psychiatric injury.

However, the Tribunal concluded that the injuries to feelings and psychiatric injuries were limited losses due to the GTCS investigations acting as a break in the chain of causation. The break in the chain of causation also led the Tribunal to view pension loss and legal expenses awards as being not applicable. The Appellant appealed the Tribunal’s decision, primarily on the basis that the GTCS investigation did not serve as a break in the chain of causation.

The Appeal Tribunal considered the concept of breaking the chain of causation. It was recognised that it is unfair to hold a Respondent responsible for an act which is the fault of something or someone out of their control. However, if the act of a third party is deemed to be a natural progression from an initial wrongful act of the Respondent, the chain of causation will not be considered to have been broken.

Therefore, the Appeal Tribunal held that the initial ruling was made in error. The GTCS investigations did not represent a break in the chain of causation. There was a clear link between the wrongful act of the Respondents and the GTCS investigations. The investigations only took place because of the referral made to GTCS by the Respondents. The investigations were a natural progression of the initial wrongful act.
The Appeal Tribunal remitted the case to the Employment Tribunal for:

1. Reassessment of the heads of future loss, injury to feelings and psychiatric injury.
2. Reconsideration of the pension loss and legal costs element of the GTCS proceedings.
3. Reconsideration of the expense aspect for the Liability Hearing.
4. Consideration of the ACAS uplift aspect.
5. Consideration of the grossing up for tax aspect.