What constitutes detriment?
Employees have a right, under section 47B Employment Rights Act 1996, “not to be subjected to any detriment… on the ground” that they made a “protected disclosure” (commonly called whistleblowing).
The meaning of “detriment” was not, however, defined in the Act. In a 2003 case it was given a broad meaning, as occurring “if a reasonable worker would or might take the view that they have been disadvantaged in the circumstances in which they had to work.” It was further confirmed by the Court of Appeal (CoA) in 2019 that a detriment must be in the field of employment, not in a private capacity.
In a recent case the CoA has further found that an employer’s inaccurate rebuttal of an employee’s allegations can also amount to a detriment.
The case arose after a paediatric surgeon made serious allegations against the Alder Hey Children’s Trust, referring to what he saw as fundamental failings in the Department of Paediatric Surgery. To do so, the surgeon relied on confidential information obtained from a mediation process; he also provided information to the Independent on Sunday. He later obtained an interim injunction from the High Court to prevent the Trust from convening a panel to consider termination of his contract.
When the case eventually came to trial, the surgeon conceded that he had provided to Private Eye documents obtained through disclosure in legal proceedings. The result was that he agreed to resign, contribute to the Trust’s legal costs, and drop the action in the High Court.
After the Royal College of Surgeons found the overall standard of care to be acceptable, and after the surgeon had made further criticisms, the Trust rebutted his allegations, in their entirety, to MPs and the Care Quality Commission. The surgeon then made a claim for ‘detriment’ in an employment tribunal, on the ground that the Trust had wrongly stated that his allegations were wholly unsubstantiated.
Most notably the CoA did find that making this inaccurate statement amounted to a ‘detriment’ for the purposes of whistleblowing protection. In this particular case the surgeon’s appeal was dismissed because the detrimental act was not in response to the surgeon having made protected disclosures, the Trust had acted in this way in order to protect itself from unprotected disclosures to the media.
Employers should be aware that an inaccurate rebuttal of an employee’s allegations (for example by stating that they are wholly unsubstantiated if they are not) can amount to a ‘detriment’. Therefore if it is made in response to an employee making protected disclosures, or raising discrimination allegations it could give rise to a valid claim. This case should draw the attention of employers to the importance of investigating and responding to employees’ allegations in a reasoned, measured and accurate manner, since to deny them without justification could question the employee’s reputation and integrity allowing a detriment claim to arise.
