Employees and workers have legal protection against being subjected to a “detriment” on the ground that they have made a protected whistleblowing disclosure. The disclosure does not have to be the only reason for the detriment, but it must have had a more than a minor influence on it. Employers should make it absolutely clear, through policy and training, that employees who have made potential protected disclosures should not be treated any differently as a result. The risks of doing so are significant, as the recent tribunal case of Rooke v NHS Blood and Transplant illustrates.

In this case, the Claimant raised a protected disclosure with the Respondent. Some time later, she went on a team-building session which included a Star Wars-themed personality test. The Claimant’s colleague (whose conduct had been, in part, the subject of the protected disclosure the Claimant had made) completed the test on her behalf and announced to the team that the Claimant matched the personality of the villain, Darth Vader.

Although the test described the Darth Vader archetype as a “focused individual who brings the team together”, the tribunal found the comparison insulting. The Claimant’s unchallenged evidence was that her colleague had, as a result of her protected disclosure, been told that she was a bad representative of the team. The tribunal found this more than sufficient to satisfy the requirement that the Darth Vader comparison was “on the ground” of the Claimant having made the protected disclosure.

The Claimant brought four separate claims against the Respondent. Only the whistleblowing detriment claim was successful. However, the financial and reputational consequences for the Respondent were significant. Compensation in claims of whistleblowing detriment is uncapped and can include injury to feelings. The Claimant was awarded nearly £30,000. 

Employers should set clear expectations of workplace behaviour and interaction. It must be absolutely clear that victimising colleagues who have raised any form of complaint at work is not tolerated. 

Speak to Jon Dunkley

Jon is a Partner at Wollens and can advise you. Contact Jon via email jon.dunkley@wollens.co.uk or call 01271 341021.

You can also complete an online enquiry form. One of the Wollens team will contact you as soon as they are available.