The claimant’s claim was that she was subjected to detriment in an internal selection process on grounds of having made a protected disclosure. It was accepted by the respondent that the claimant had made a protected disclosure and the focus was on whether or not the claimant suffered detriment on grounds of having made that protected disclosure.

It was contended that the reason she was not short-listed was because a Professor from the selection panel deliberately wanted to make sure that she would not get the post firstly, because she was a whistleblower and, secondly, because they wanted to make sure that the claimant would have no contact with DEL in relation to the previous financial claims which had been the subject of the whistle-blowing incident in 2012. It was also alleged that the Professor was so determined to ensure that she did not get the position that the respondent deliberately included a criterion which it knew she couldn’t satisfy.

The tribunal accepted that there were shortcomings in the recruitment process, but declined to draw an inference that there was deliberate victimisation. Whilst it accepted that there was detriment suffered, it was satisfied that the employer had provided a satisfactory response based on the oral evidence of Professors involved in the recruitment process. The tribunal was satisfied of the fact that there were genuine reasons for the selection criteria which had been compiled and also relied on the fact that an independent review of the programme as well as a previous job description were instructive in the process. The claimant’s claim in relation to the failure to shortlist her was dismissed on the time-point but the claim in relation to detriment was rejected for the above reasons. 

Practical lessons

This case illustrates that just because a claimant suffers detriment and may feel genuinely aggrieved, an employer who is able to demonstrate an untainted explanation can escape liability. Relying on the authority of Nagarajan 1999 IRLR 572 (HL) it was stated that the key question is whether the detrimental acts were materially influenced by the fact that the claimant made protected disclosures. Yes, the employer’s recruitment process had its flaws but this did not alter the ‘motivation’ in rejecting her application which is undoubtedly the key consideration.