29th March 2022

Protected Disclosures: Fail to deal with them fairly and reasonably to your detriment

The Employment Rights Act 1996 (ERA 1996) provides two types of protection for individuals who have made a protected disclosure. Firstly, in the case of employees, automatic unfair dismissal and, for employees and workers, protection from dismissal. Secondly, individuals should not suffer a detriment (which could be something short of dismissal) for making a protected disclosure.

The term “detriment” is not defined in the ERA 1996 and many employers do not fully appreciate that detriment can encompass more than paying less, refusing promotion or denying benefits. Detriment can include physical, mental or emotional discomfort such as a requirement to work harder, longer, unsocial hours or alone. It can also be a one-off incident and the individual does not have to actually suffer economic or physical damage to show that they have suffered a detriment. The test is whether a reasonable person would or might take the view that the treatment afforded to them had in all the circumstances been to their detriment.

A recent Employment Tribunal judgment (Ms Olga Antonova v HF Trust Limited t/a HFT) is a good example of a one-off incident of discomfort caused by an employer that was deemed to be a detriment on the ground that a protected disclosure was made.

Ms Antonova had made a protected disclosure on 5 July 2019, and on 16 July her employer held an informal meeting with her as the first step in a grievance procedure. The Tribunal found a number of things wrong with this meeting including: the fact it lasted nearly four hours; the notetaker left after the first hour; there was no break or offer of a break; it took place in a small room and; the employer went into considerable detail and at considerable length to explain its viewpoint. The Tribunal was of the view that the employer ought to have kept the meeting to an appropriate length and its approach was overbearing and lead to the meeting becoming unnecessarily intense and confrontational on occasions. The Tribunal found that the mistreat of Ms Antonova was because the employer wanted to discourage her from pursuing her whistleblowing complaint and accepted that she was upset by how the meeting was conducted to the point she became stressed and anxious. The Tribunal also found that it was reasonable for the Claimant to have felt that she was put at a disadvantage through the conduct of the meeting.

Here are our top tips for avoiding an emotionally charged meeting and reducing the risk of a detriment claim:

  1. Be prepared: have a clear idea what is to be discussed and allow enough time. If there is a lot of issues to discuss consider scheduling blocks of time over the course of the day or over a number of days. Consider what might be needed for everyone to be comfortable – space, refreshments and comfort breaks – and ensure the notetaker is present for the entire meeting.
  2. Listen: explain your side of the story but make sure you have given the other person an opportunity to respond and listen to what they have to say. The aim of the meeting is not to force your point home, it is to gather all the information you need to make a properly informed decision after the meeting.
  3. Stay calm: it is important to stay calm and polite. It is possible to disagree with something that is said or put over a different point of view without being aggressive or overbearing.

If would like advice on how to deal with whistleblowing in your workplace or any other employment law related matter contact Blackadders Employment Team in Aberdeen, Dundee, Edinburgh, Glasgow, Perth and across Scotland.

Donna Reynolds employment law partner

Donna Reynolds, Partner
Accredited by the Law Society of Scotland as a Specialist in Employment Law & Discrimination Law
@EmpLawyerDonna

www.blackadders.co.uk

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