McNicholas v Care and Learning Alliance (2023)

Claimant found to have suffered detriment after making protected disclosures about Respondent's nursery, which included the Respondent making a retaliatory fitness to practice complaint relating to the Claimant to the General Teaching Council of Scotland (GTCS) in bad faith. Nevertheless, as the GTCS decided to investigate further, the ET held that the GTCS decision amounted to an 'intervening act' (i.e. novus actus interveniens) which broke the chain of causation between detriment and loss, such that the Claimant was not entitled to compensation for losses that accrued for the period beyond the date of the GTCS decision. However, the EAT have ruled that the ET had erred. The GTCS decision was not an 'intervening act'. To constitute an 'intervening act' which severs the chain of causation, the act must be the one and only cause of the ongoing losses beyond the date of the act, such that the detriment is no longer a contributory factor. The EAT held that that was not what happened in this instance. On the contrary, the GTCS decision was a direct result of the Respondent's detriment, and the detriment thereby in essence remained the cause of the ongoing loss