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Victimisation claims – the law

Victimisation claims - the law

Being punished or victimised (otherwise known as ‘suffering a detriment’) because you have blown the whistle (made a protected disclosure), is a breach of your employment rights. Victimisation can come from a range of people in workplaces and in a variety of forms.  

If you are treated badly at work but you have not blown the whistle, we recommend contacting one of the other organisations found on our referral page. 

What is detriment?

The law doesn’t define detriment and working out if you could claim damages because you have been victimised can sometimes be difficult to judge. A helpful way to think about it is whether any acts from managers or co-workers makes it difficult for you to do your job and have had consequences you can point to. If they do, this is more likely to be victimisation. For example, there can be a big difference between not being greeted in the morning because your co-workers are unhappy about you blowing the whistle and being taken off a key project you were overseeing which meant you lost out on a commission (victimisation). 

Below is a non-exhaustive list of potential examples of victimisation that might be included: 

  • Personal retaliation: bullying, harassment or ostracisation that makes your life difficult in the workplace, or grievances or complaints made against you by colleagues in response to you raising whistleblowing concerns. 
  • Misuse of disciplinary processes:unjustified and/or unfair comments and reviews regarding your performance or conduct, investigations into fabricated concerns about your conduct or performance or directly disciplining you for raising concerns. 
  • Imposed changes to your contract:removal of key responsibilities, unrequested relocation or redeployment, imposed changes to your working pattern, early termination of a fixed-term contract, being demoted, reduction of wages or suspension.
  • Preventing your career progress: denial of promotion, training opportunities, access to resources or contract renewal where there was a legitimate expectation of renewal or being made permanent.
  • Failure to respect your confidentiality as a whistleblower 

An unjustified sense of grievance will not generally amount to victimisation. A failure to deal with your whistleblowing concerns properly will only be a detriment if you can show that this is a deliberate failure to act which is caused by you raising protected disclosures, which can be a difficult argument to make. 

Detriment Claims

The law gives the right to bring a claim for having suffered a detriment because you blew the whistle. Detriment claims are made under s47B of the Employment Rights Act 1996. To succeed in a detriment claim, the protected disclosure does not have to be the only reason you were subjected to victimisation, but it must have had a more than a minor influence on you being treated negatively. 

To succeed in a detriment claim, the tribunal will look at whether:

  • You have suffered victimisation in relation to your employment 
  • There has been an act or deliberate failure by the employer/an individual which led to the victimisation 
  • The act or deliberate failure was more than trivially influenced by the whistleblowing; and 
  • If the claim is against a co-worker or agent of your employer, that they were acting with the employer’s authority when they victimised you and the employer did not take all reasonable steps to prevent this victimising treatment. 

Victimisation must be suffered ‘within the employment field’

You can only claim for victimisation that you experience in relation to your employment, in other words, ‘within the employment field’.  

Being victimised in your private or personal life is not covered by whistleblowing legislation and therefore cannot be claimed for at the Employment Tribunal. In the case of Tiplady v City of Bradford Metropolitan District Council [2019] EWCA Civ 2180, Mrs Tiplady worked for the council but also owned a property in the council’s area of control and had taken issue with the way the council dealt with issues affecting her property. She resigned and sought to bring a detriment claim. The tribunal found that the detriments she complained of arose from the way the council dealt with her property issues, and so concerned her as a householder and were not suffered in her capacity as an employee. 

Bringing claims against co-workers or agents

Employers can be vicariously liable for the acts of its employees and, in some circumstances, their agents. Vicarious liability means that a colleague (or an employer’s agent acting with the employer’s authority) when victimising a whistleblower will usually be treated as having been done by the employer meaning a claim can be brought against the employer. It does not matter whether the victimisation occurred with the employer’s knowledge or approval. 

Detriment claims can also be brought directly against co-workers who have victimised you. If you are considering naming an individual colleague as a respondent in a detriment claim, seek advice from Protect.  

You can also claim for victimisation suffered after you have left an employer. This is called ‘post-employment detriment’. Examples of this include your ex-employer withholding your reference, writing an inaccurate or fabricated negative reference or doing something that impacts a new job if done in order to victimise you for whistleblowing.

It is also possible to bring a detriment claim against any new employer if they victimise you for previous protected disclosures you have made elsewhere.

The employer’s reasonable steps defence

If you bring a detriment claim against your employer, they may have a defence to the claim under section 47B(1D) of the Employment Rights Act 1996 if the employer took “all reasonable steps to prevent the detrimental treatment” committed by its employees or agents acting with the employer’s authority. 

The defence is like that contained within discrimination law and with the absence of case law on the defence in a whistleblowing context, tribunals should look to discrimination case law for guidance as to what should be considered reasonable steps. 

To succeed with the defence, the employer must have taken such steps before the act of victimisation occurred.  The employer acting reasonably in response to a report of victimisation is not sufficient to succeed in the defence. An Employment Tribunal should look at steps the employer took and what steps the employer could have reasonably taken in the circumstances. What constitutes ‘all reasonable steps’ will depend on the specific circumstances of the employer e.g. size and sector, etc. Reasonableness will be judged on a combination of factors including cost, practicality and the likelihood of those steps actually preventing victimisation. 

An employer who fails to establish that they have taken ‘all reasonable steps’ for the purposes of establishing the statutory defence is vicariously liable for acts of victimisation by its employees. 

Reasonable steps could potentially include:

  • Your employer having a whistleblowing policy which makes it clear that victimisation of whistleblowers will not be tolerated. 
  • The policy being brought to the workforce’s attention via training and actively implemented; or 
  • The training and policies being regularly updated. 

If you make a reasonable request of your employer to protect you against victimisation and they do not put it in place, this can be a useful way of demonstrating that they didn’t take all reasonable steps to protect you. 

Is being dismissed an example of victimisation?

If you are an employee and you have been dismissed, you cannot list your dismissal as victimisation against your employer. It is however possible to bring a detriment claim against an individual person for their decision to dismiss you for which your employer can be made vicariously liable. 

In the case of Timis & Anor v Osipov & Anor [2018] EWCA Civ 2321, two non-executive directors made the decision to dismiss the claimant for whistleblowing. The employer however became insolvent, meaning it would have been unable to pay any financial award to the claimant if they succeeded at the Employment Tribunal. Instead, the claimant successfully brought detriment claims against each director for the decision to dismiss him. The advantages of an Osipov-style claim is that the causation test is lower for detriment claims: for a dismissal claim the whistleblowing must have been the main or sole reason for the dismissal whereas for a detriment claim, the whistleblowing must have had a more than trivial influence on the victimisation. Secondly, if your employer is insolvent, it means you may still be able to seek compensation from solvent individuals. 

If you are a worker, you cannot bring a claim for automatic unfair dismissal for whistleblowing as you are not an employee. You can, however, list the ending of your work as an example of victimisation for a detriment claim. 

Have you been disciplined for the way you made your disclosure?

A detriment claim will not succeed if your employer can show that the negative treatment you suffered was not materially done because you made a protected disclosure, but because of your behaviour or conduct in the way you blew the whistle which was deemed separate from the whistleblowing. Examples of actions that your employer may treat as separate conduct from your whistleblowing may include:  

  • Using derogatory or discriminatory language  
  • Aggression 
  • Accusing colleagues of incompetence or malice 
  • Investigating your concerns yourself when instructed not to 

A detriment claim may also not succeed if your employer made changes to your working arrangements as the only way to deal with a dysfunctional working situation and therefore not materially because you made protected disclosures; NHS Manchester v Fecitt and others [2011] EWCA Civ 1190; [2012] IRLR 64 (CA). For example, if relationships between you and your colleagues break down after your whistleblowing to such an extent that there is no other way to resolve the issues in the workplace other than changing your working arrangements. Do seek advice from Protect if this applies to you. 

What are the time limits for bringing a detriment claim?

You have 3 months minus one day from the date of the negative treatment to bring a detriment claim in the Employment Tribunal. If you have suffered a series of detriments, the time limit runs from the most recent one. You can start a claim by contacting ACAS. You should follow the Acas Code of Practice on grievance procedures as this can affect the level of compensation you receive should you win at the Employment Tribunal.  

If you are bringing a detriment claim against an individual as well as your employer, you need to start Acas early conciliation against each of them – you will need a separate Early Conciliation number for each Respondent when you complete your ET1. We have a guide on how to fill an ET1 form which you can find here.

You can find out more about claims and a helpful practical and legal checklist on our dedicated webpage. 

If you win your detriment claim, the employment tribunal will assess what level of compensation you should be awarded. If you are bringing a claim against your employer, you should calculate how much compensation you could realistically receive as early as possible. See our webpage on the remedies and compensation available for whistleblowing claims here.