Unfortunately for one employer, the force was not with them when an employment tribunal held that an employee had been subject to a detriment for raising a protected disclosure by being likened to Darth Vader during a team building exercise.
So, what happened in a galaxy not so far, far away…?
- Facts of the case
- What did the judge say
- Key takeaways
Facts of the case
The employee worked as a Training and Practice Supervisor in the Nursing and Care Quality Team (Blood Donation). She raised a number of concerns with her employer, including one about an omission in the questions asked to new blood donors.
Not long after, at a team building exercise during a team meeting, members of the team completed a personality-type questionnaire with a Star Wars theme. The employee did not participate in this, as she had temporarily left the meeting in response to a personal telephone call. When she returned to the meeting, a colleague had completed this questionnaire on her behalf, with the outcome that the employee’s personality was found to be Darth Vader.
There were other issues around the same time, such as changes to the employee’s role and difficult personal circumstances, including caring for her mother, who had been diagnosed with Alzheimer’s. The employee ultimately resigned, citing personal reasons, raised grievances which were investigated and asked to rescind her resignation. The employer didn’t agree to this.
The employee complained to the employment tribunal that she had been subjected to a detriment for blowing the whistle, had been constructively unfairly dismissed because of the way her employer had treated her and had been subjected to disability discrimination.
What did the judge say?
The judge found that the employee had been subjected to a detriment on the grounds of making a protected disclosure; the rest of her claims failed. Amongst other things, the judge found that:
- The employee was a whistleblower- when she raised her concern about the omission in one of the questions on the new Donor Safety Check, she reasonably believed it tended to show a health and safety risk, and she had a reasonable belief that what she was raising was in the public interest.
- The employee was subject to a detriment in connection with her whistleblowing by being likened to Darth Vader. It wasn’t simply the case that the whole team had taken the test and that was the outcome for the employee – it was the colleague that took the test for her. It therefore reflected the colleague’s perception of the employee’s personality; this was informed in this case by the colleague’s awareness of the whistleblowing and associated views and the result was shared in a group environment.
- “Little wonder the employee was upset by it” – The employee perceived her characterisation as having a Darth Vader personality type to be a detriment, and it was reasonable for her to do so. The employer had tried to argue that being characterised as a Darth Vader personality type had some positive attributes, but the judge commented that “Darth Vader is a legendary villain of the Star Wars series, and being aligned with his personality is insulting”.
- The employer had also refused to rescind the employee’s resignation because of her whistleblowing, subjecting her to a further detriment.
- In the circumstances, the Darth Vader incident wasn’t sufficient for the constructive unfair dismissal claim to succeed, nor was it the reason she resigned – this was due to her personal situation.
The employee was awarded almost £29,000 in compensation.
Key takeaways
What lessons can be learned from the case of Rooke v NHS Blood and Transplant? To help protect your business, make sure:
- You are alert to whistleblowing issues and have an awareness of the protection that whistleblowers have.
- You communicate clearly to all employees that it’s not permitted to subject a colleague to detrimental treatment in connection with their whistleblowing, for example, by insulting or ignoring them. Remember, your business can find itself vicariously liable for their actions. It will be important to be able to show that you took all reasonable steps to prevent the detrimental treatment.
- You carefully consider and assess team building and other exercises to make sure they are appropriate in the circumstances. Careful thought, planning and communication can help to reduce the likelihood of issues arising. Making sure that your people are aware of the expected standards of conduct generally and during any less frequent activities such as team building exercises, can help to prevent employees from inadvertently going over to the dark side…
Have an HR issue troubling your business? Get in touch for advice.