Luke, I am your whistleblower: An analysis of pop-culture references and whistleblowing detriment

Introduction

Can likening a colleague’s personality to that of a movie villain amount to a fundamental breach of contract and / or a whistleblowing detriment for the purpose of the Employment Rights Act 1996 (the ERA 1996)?  These were amongst the issues considered in the judgement of Rooke v NHS Blood & Transplant. 

Whilst this case concerned wider issues, including allegations of disability discrimination, in this article we specifically examine the circumstances in which a seemingly trivial workplace interaction involving a well-known movie franchise can create a significant degree of legal exposure.

Background to the case

The Claimant was employed by the Respondent as a Training and Practice Supervisor, responsible for health and safety oversight in respect of blood donation, from 2003 until her resignation in September 2021. During that period, she made a series of disclosures about health and safety practices, one of which (concerning an omission from a blood donor safety check form) was identified by the Employment Tribunal as a protected disclosure for the purposes of section 47B of the ERA 1996 (the Disclosure).

During a team exercise on 18 August 2021 (approximately three months after making the Disclosure), the Claimant’s team were each completing a Star Wars-themed Myers-Briggs personality assessment questionnaire. Whilst the Claimant was temporarily out of the room, a colleague completed the questionnaire on the Claimant’s behalf. The Claimant’s colleague completed the questionnaire with responses that were based on their perception of the Claimant’s personality; the result of the questionnaire was that the Claimant’s personality was likened to Darth Vader, the evil antagonist of much of the Star Wars series (the Darth Vader Incident). Notably, the colleague who completed this personality test on the Claimant’s behalf was the same colleague to whom the Claimant had made the Disclosure.

The Claimant resigned less than a month later, citing “personal circumstances”, before then formally attempting to retract her resignation three weeks later.  The Respondent did not agree to the retraction of the Claimant’s resignation, offering the explanation that she was three weeks into a four -week notice period and that the Respondent was not obliged to agree to the retraction. This refusal was subsequently upheld by the Respondent after it became the subject of a grievance filed by the Claimant.

The Employment Tribunal Claims

The Claimant’s employment therefore terminated on 17 October 2021, following which she filed the following claims in the Employment Tribunal:

1. Constructive Unfair Dismissal under section 95(1)(c) of the ERA 1996 (the “CUD Claim”), alleging that a series of acts including the gradual erosion of her role over time and culminating in the Darth Vader Incident as the “last straw”, breached the implied term of trust and confidence between her and the Respondent and effectively forced her to resign and treat herself as dismissed. 
2. Detriment on the Ground of Protected Disclosures under section 47B(1) of the ERA 1996 (the “Detriment Claim”), asserting that she had suffered various detriments as a result of having made protected disclosures, predominantly the Respondent’s refusal to retract her resignation and the Darth Vader Incident.
3. Direct Disability Discrimination under section 13(1) of the Equality Act 2010 (the EqA), on the grounds that the Claimant’s anxiety and low mood amounted to a disability for the purpose of the Equality Act 2010, and that the Respondent’s refusal to retract the Claimant’s resignation amounted to less favourable treatment due to this disability. 
4. Failure to Make Reasonable Adjustments under sections 20 and 21 of the EqA, asserting that the Respondent did not accommodate the Claimant’s anxiety and low mood, particularly when handling her resignation and the attempted retraction. 

Putting aside the disability-related claims (which failed), the Claimant failed with the CUD Claim; however, the Detriment Claim succeeded and she was awarded £16,989.61 in financial losses and £12,000 by way of compensation for injury to feelings. 

In respect of the CUD Claim, the Claimant relied on the Darth Vader Incident as the “last straw” in a series of alleged breaches that cumulatively entitled her to resign. Upon examination, the Employment Tribunal disagreed and concluded that “the Darth Vader Incident was not a repudiatory, or even a less-than-repudiatory, breach of the Claimant’s contract of employment”, further concluding that the Darth Vader Incident was not part of a course of conduct comprising several acts and omissions which, when viewed cumulatively, amounted to a repudiatory breach of contract.

However, the Employment Tribunal upheld the Detriment Claim, finding that each of (i) the Darth Vader Incident and (ii) the Respondent’s refusal to permit the retraction of the Claimant’s resignation amounted to ‘detriments’ and that the Claimant had been subjected to these detriments on the grounds of the Disclosure.

The test for whether something amounts to a ‘detriment’ such that the protection afforded by section 47B of the ERA 1996 is potentially engaged (subject to whether it occurred on the ground of a protected disclosure), is primarily set out in the case of Shamoon v Chief Constable of the Royal Ulster Constabulary.  In its most simple form, a detriment is something that amounts to a ‘disadvantage’. When assessing this, an Employment Tribunal will ask two questions: first, whether the employee subjectively perceives the treatment as disadvantageous; and second, whether a reasonable worker in the same circumstances would or might view it as such a disadvantage.

The Darth Vader Incident was determined to amount to a ‘detriment’ as the Employment Tribunal concluded that the negative overtones of the villain, coupled with the Claimant’s lack of input into the questionnaire and the fact that the results were publicised in front of a group of colleagues meant that a reasonable employee would reasonably perceive this as demeaning.  This was despite the Respondent’s arguments that (i) the exercise was light-hearted; (ii) there was no intention to harm or belittle the Claimant; (iii) Darth Vader has redeeming qualities and it was these qualities that the test results drew out, such as his unwavering commitment to “the mission”; and (iv) therefore no reasonable worker would regard such a pop-cultural comparison as a serious slight, particularly in the context of a team-building exercise.

The Darth Vader Incident was held to be ‘on the ground of’ the Disclosure because (i) the proximity in time between the two events; and (ii) the fact that the colleague to whom the Disclosure was made was the same colleague who completed the Myers-Briggs questionnaire on behalf of the Claimant, led to no other conclusion than the incidents were related. Had the colleague not been aware of the Disclosure, it is almost certain that a different conclusion would have been reached (unless there was some manner in which the Disclosure could otherwise be connected to the colleague).

Key Takeaways (some more key than others)

The Employment Tribunal’s finding in this case comes with several key takeaways for employers:

1. Employee whistleblower awareness is crucial: as this case demonstrated, it is vital that employees are aware of the principles of whistleblowing and what may constitute a ‘protected disclosure’.  Whilst, in this instance, it is possible that the colleague who filled out the personality questionnaire and shared the results didn’t fundamentally do so because the Claimant had previously shared a complaint about health & safety practices with her, the fact that she was the recipient of the Disclosure was material to the Employment Tribunal’s conclusion that the detriment of the Darth Vader Incident was ‘on the ground of’ the Disclosure and therefore a breach of section 47B of the ERA 1996. For the purposes of whistleblower protection under the ERA 1996, ‘on the ground of’ is a lower threshold to satisfy than ‘because of’; a protected disclosure need only be an operative factor in the decision to subject an employee to detriment, it need not be the sole or principal reason for that detriment. In this case, had the colleague recognised that the Claimant had previously made a potential protected disclosure(s) to her and therefore it would be inadvisable to complete the personality questionnaire on her behalf in the manner she did, liability could have potentially been avoided.
2. Be wary of conflating legal tests / thresholds: as proven by the failure of the CUD Claim and the success of the Detriment Claim, whilst an action may not amount to a breach of contract, it may still amount to a detriment.  This case particularly highlights the differing and nuanced legal tests that are applied to different categories of wrongdoing.
3. When it comes to pop-culture references, the more niche the better: the key question in determining whether the Darth Vader Incident constituted a detriment was whether a reasonable worker in the same circumstances would or might view this label as a disadvantage.  A particular focus of the Employment Tribunal’s commentary on this question was the pervasiveness of Star Wars in pop-culture and Darth Vader’s position as “a legendary villain of the Star Wars series”. This raises the question of whether, had the pop-culture reference been more nuanced and / or lesser known (but equally villainous) e.g. a comparison between an employee and Director Krennic - who actually built the Death Star and was therefore indirectly responsible for the destruction of several planets, would the Employment Tribunal have been less likely to conclude it amounted to a detriment, or at the very least reduce the Claimant’s injury to feelings award? 
4. It does not necessarily matter if a villain has any redeeming qualities. In this case, the Respondent’s efforts to convince the Employment Tribunal that the Darth Vader Incident did not amount to a detriment by partially relying on Darth Vader’s redeeming qualities of his organisational skills and commitment to his job, were unsuccessful.  This should be a cautionary tale for any employees who want to compare a colleague to Hannibal Lecter because of their taste in classical music, or to Lord Voldemort because they were academically gifted and good at school. Employers should set expectations around conduct accordingly.
5. Consider the workplace scenarios being created: sometimes overlooked in these scenarios is the fact that the misconduct occurred in an environment that was facilitated by the employer.  In this case, for example, the Darth Vader Incident occurred where employees were provided with the tools to generate this comparison.  Blame cannot solely rest with the employer in these situations; however, irrespective of the intentions behind selecting a Star Wars themed personality assessment, in a scenario that can generate a comparison between an employee and a murderous supervillain, it may be advisable to expect the worst and pick a different theme.