Protected disclosure was made but the Claimant did not suffer detriment as a result of it.

The Claimant is employed as a nursery assistant with the Respondent. The Claimant has been on sick leave since February 2023 and remains on sick leave.

The Claimant allegedly made a complaint to the Nursery Manager in 2021 that children were being restrained in highchairs for excessive periods of time. The Claimant also made a complaint to a social worker in February 2023 that the children were being restrained in the highchairs and stated that children were being placed in isolation in a room known as the ‘chokie’. The Claimant alleges that she suffered a range of detrimental treatment as a result including burdensome investigative procedures, the content of the grievance process being public, being moved to the toddler room which is more stressful, being required to work longer hours and re-vetting.

The Tribunal noted that the Claimant and her representative were not very clear on what the basis of the statutory claim was and that the Tribunal process was not to be used as a public inquiry into the nursery. The claim was one of suffering detriment because of the protected disclosures made.

The Tribunal had to determine if protected disclosures were made. The nursery manager denied the Claimant had raised a concern about children being restrained in highchairs for excessive periods. The Tribunal agreed with this finding that it was highly improbable that the Claimant would raise this issue in 2021, that the claim had been ignored and continue working in the nursery without pursuing it. The Tribunal stated that it was for the Claimant to prove that the disclosure was made and this was not achieved. The second comment was made but the Tribunal noted that it was made in the context of a heated employment dispute and after lengthy periods of sick leave. It is surprising that the Claimant had not made it earlier. However, the Respondent accepted that it was a protected interest disclosure.

Intertwined with this was a grievance submitted by the Claimant. It was through that process upon which the Claimant argued there was detriment. The Claimant stated the process was burdensome, yet the Tribunal found the grievance process to be thorough and reasonable. The Claimant argued that grievance became a matter of public knowledge. The Tribunal found that in a small employment atmosphere where 11 of the Claimant’s colleagues were interviewed it was easy to establish who lodged the grievance. These points then went into issues relating to how the Claimant had been treated by other colleagues such as being unfriended on social media.  The Tribunal examined all of the allegations of detriment, finding that each of them were not detrimental as outlined within the legislation. As a result, the Claimant’s case was dismissed.

The issue of protected disclosures can cause some fear amongst employers in terms of being able to continue acting within, what can be, a sensitive environment. In this case, there were issues between the employer and employee such as the grievance process and investigation. The employer was found to have not treated the Claimant with detriment as they had a reasoned basis for the decisions and processes being carried out. This is guidance for employers that they can continue to act even where such an allegation has been raised but that it must be on the basis of policies and procedures as well as ensuring that it is reasonable rather than being based upon the fact that a disclosure was made.

NI Tribunal decisions are available on the OITFET website.