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Monthly Bulletin Archive
4th July 2025
Employees and workers have legal protection against being subjected to a “detriment” on the ground that they have made a protected whistleblowing disclosure. The disclosure does not have to be the only reason for the detriment, but it must have had more than a minor influence on it. Employers should make it absolutely clear, through policy and training, that employees who have made potential protected disclosures should not be treated any differently as a result. The risks of doing so are significant, as the recent tribunal case of Rooke v NHS Blood and Transplant illustrates.
In this case, the Claimant raised a protected disclosure with the Respondent. Sometime later, she went on a team-building session which included a Star Wars-themed personality test. The Claimant’s colleague (whose conduct had been, in part, the subject of the protected disclosure the Claimant had made) completed the test on her behalf and announced to the team that the Claimant matched the personality of the villain, Darth Vader.
Although the test described the Darth Vader archetype as a “focused individual who brings the team together”, the tribunal found the comparison insulting. The Claimant’s unchallenged evidence was that her colleague had, as a result of her protected disclosure, been told that she was a bad representative of the team. The tribunal found this more than sufficient to satisfy the requirement that the Darth Vader comparison was “on the ground” of the Claimant having made the protected disclosure.
The Claimant brought four separate claims against the Respondent. Only the whistleblowing detriment claim was successful. However, the financial and reputational consequences for the Respondent were significant. Compensation in claims of whistleblowing detriment is uncapped and can include injury to feelings. The Claimant was awarded nearly £30,000.
Employers should set clear expectations of workplace behaviour and interaction. It must be absolutely clear that victimising colleagues who have raised any form of complaint at work is not tolerated.
Remote and hybrid working have reshaped how organisations operate. For HR professionals, they’ve also created new legal and practical responsibilities. From updated legal rights to changing expectations, here’s what you need to know to stay compliant and keep your people supported.
As hybrid work becomes the norm, HR must guard against the emergence of a two-tier workforce – one where remote workers miss out, and in-office staff feel they’re carrying the burden. Here’s how to keep things fair.
However, there are exceptions to this. For example, where an application for home or hybrid working has a disability sitting behind it. The duty to make reasonable adjustments may require approval to be given in order to remove a substantial disadvantage faced by a disabled employee if they were required to work in the office.
Employers also need to be careful where a request is from a member of staff with caring responsibilities for children as an unsupported refusal could give rise to a claim of indirect sex discrimination.
Hybrid working offers flexibility, but it requires thoughtful planning. With HR at the helm, organisations can build models that are not just productive – but fair and inclusive for all.
When a role is redundant you would think that the position was fairly clear: the person occupying the redundant role should (if no alternative vacancy is found for them) be made redundant. The concept of ‘bumping’ cuts across this. It involves moving a redundant employee into a role held by someone else, who is then themselves dismissed. And it can be fair. Here’s what you need to know:
Bumping involves moving Employee A (whose role is redundant) into Employee B’s role, resulting in Employee B being dismissed. Even though Employee B’s role still exists, their dismissal is considered a redundancy if the reason is to free up a role for Employee A. Employee B is entitled to a redundancy payment, but only if redundancy is the main reason for dismissal.
Bumping can be particularly relevant when:
In Mirab v Mentor Graphics, the Employment Appeal Tribunal confirmed that while employers are not legally required to consider bumping in every redundancy case, failing to do so could make a dismissal unfair. It’s good practice to at least consider bumping – particularly if it is raised by the at-risk employee or you can identify a role suitable for bumping the at-risk employee into, which is not too different (including skills and salary level) from their current role.
Bumping can be a useful tool but must be managed carefully. It’s not mandatory but considering it can help demonstrate fairness in the redundancy process and reduce legal risk.
When an employee is on maternity leave, their contract continues, and they remain entitled to most benefits – except for “wages or salary” (as defined by Regulation 9 of the Maternity and Parental Leave Regulations 1999). Bonuses, which often fall into this category, need careful handling.
Under the Equality Act 2010, treating someone unfairly because of pregnancy or maternity is unlawful. But employers can reduce bonus payments to reflect time taken on non-compulsory maternity leave.
Employers must pay:
The rest of the bonus period can be reduced proportionately to reflect time off.
Most performance-related bonuses, including team and company targets, and regular bonuses like Christmas bonuses, are treated as deferred pay and fall under this rule.
Even discretionary bonuses are likely to be covered. If they’re paid regularly, they may be seen as a contractual entitlement, regardless of how they are labelled. The same pro rata principle applies.
If performance targets are used to calculate bonuses, clearly explain how these will be adjusted to reflect any period of maternity leave. For example, by pro-rating targets or applying average performance measures. Failure to do this could risk a claim of discrimination.
Other long-term incentive plans (like share awards) should also follow the same approach, with awards reduced in line with time spent on maternity leave.
Victimisation is a form of discrimination that happens when an employee is treated badly because they have done – or are believed to have done – a ‘protected act’ under the Equality Act 2010.
A ‘protected act’ includes things like:
Sometimes it’s obvious a protected act has taken place, for example, when someone clearly alleges race discrimination. But it’s not always that straightforward.
In Kokomane v Boots Management Services, the Employment Appeal Tribunal (EAT) reminded tribunals to look at the full picture when deciding if a protected act has occurred.
The Claimant, who was black, raised two grievances. In the first, she said she had been treated differently over an allegation of shouting. In the second, she complained about bullying and the failure to deal with her first complaint. She didn’t explicitly say this was because of her race.
The tribunal originally dismissed her victimisation claim, finding that she had not done a protected act. But the EAT disagreed, saying tribunals must consider the context in which the complaints were made.
The EAT clarified that a complaint doesn’t need to use the word “discrimination” or mention race specifically. It’s enough if the facts described could amount to discrimination in law. In this case, the employer knew she was the only black employee, had her grievance letter, and had heard concerns raised about racial stereotypes. These factors meant it was at least arguable she had done a protected act – and the tribunal should have considered this more carefully.
The Equality Act 2010 protects disabled employees from discrimination arising from their disability. This includes situations where someone is treated unfavourably because of behaviour linked to their condition – not just the condition itself. But that protection isn’t absolute.
Employers are not expected to overlook serious misconduct just because it may be linked to a disability. If the decision to discipline or dismiss can be justified as a proportionate way to achieve a legitimate business aim, it may still be lawful.
This was confirmed in the recent case of Duncan v Fujitsu Services, where the Employment Appeal Tribunal upheld a dismissal even though some of the employee’s behaviour was linked to his disability.
The Claimant, who had ADHD and autism, was found to have sent highly offensive and abusive messages to colleagues via Slack during work hours. He claimed his behaviour arose from his disability, but didn’t fully engage with the employer’s attempts to understand this.
The employer dismissed him for misconduct. The tribunal found the dismissal to be fair and lawful. The employer had legitimate aims: preventing threatening and harassing behaviour and maintaining a safe and respectful working environment. Given the seriousness of the language and the lack of any assurance it wouldn’t happen again, dismissal was considered proportionate.
This case shows that while disability must be carefully factored in, it doesn’t mean serious misconduct can’t be addressed.
Dismissals are challenging, and even careful employers can get it wrong. However, if a dismissal is based on a genuine mistaken belief, it can still, in some circumstances, be fair.
For misconduct dismissals, employers only need a genuine, reasonable belief in the employee’s guilt based on a fair investigation. The classic test from Bhs v Burchell confirms that it’s not about proving guilt but whether the employer reasonably believed in the misconduct after conducting a reasonable investigation.
Employers don’t need absolute certainty that an employee is incapable of performing their job. A reasonable belief based on medical reports or performance assessments can justify a fair dismissal, even if the employer is later proven wrong.
To rely on redundancy as the fair reason for dismissal, the employer needs to get it right. The employee’s role must be genuinely redundant at time of dismissal – as a result of the closure of the business or workplace, or due to a reduced need for work of a particular kind. A mistaken belief is less likely to ‘cut it’ where the reason relied upon is redundancy.
If an employer mistakenly believes continuing employment would be illegal, dismissal for illegality is unlikely to be fair. However, they may still argue SOSR if the belief was genuinely held and reasonable.
SOSR is the most forgiving category, allowing employers to rely on genuine but mistaken beliefs. For example, in Impact Recruitment Services Ltd v Korpysa, the employer mistakenly believed the employee had resigned and treated her employment as terminated. The Employment Appeal Tribunal held that a genuine, reasonable belief in resignation could be a fair SOSR reason.
While genuine mistakes can sometimes justify a fair dismissal, employers must still act reasonably and follow fair procedures. Clear communication, thorough investigations, and legal advice can help avoid costly missteps.
Health and safety isn’t just about hard hats and fire drills – it’s about creating a workplace where people are safe, supported and able to thrive. And HR sits right at the heart of that mission.
Employers have a legal duty under the Health and Safety at Work Act 1974 to ensure a safe working environment. We take a look at ways HR ‘get their hands dirty’ in this key area:
Health and safety is, at its heart, a people issue. And HR are the people experts.
And finally, Bloomberg reports that large American corporates, struggling to enthuse their employees with ‘back to the office’ rhetoric, are employing ever more contrived job requirements and monitoring, to inject ‘joy’ into their workplaces. Examples cited include Tiffany & Co., where executives required staffers to post and engage more with ‘Tiffany Joy’, an internal app designed to boost morale. Employees mockingly gave the app a new nickname “Forced Joy”. Starbucks has introduced a requirement that employees add a handwritten note or emoji to each takeaway cup. Ideas were circulated by memo for employees who were unsure what to say. It seems that Starbucks cannot rely on employees being motivated to enhance customer experience and pass-on their own ‘joie de vivre’ organically, so are having to make it a job requirement.
As the Bloomberg article concludes, happy and engaged employees are good for business. But so is creating an environment where workers can effectively do their jobs and find their own sources of workplace joy. Companies might find that if they invest in the latter, the former will organically follow – no faking it required.
Here to Help, Not Replace Experts:
The information contained in this blog presented for general informational purposes only. While we strive to provide accurate and up-to-date content, legal and HR practices can evolve rapidly. This blog is not a substitute for professional advice.
For specific questions or concerns regarding your unique situation, we highly recommend taking professional advice and booking a consultation with a Sapphire HR Consultant. Our consultants are experts in the field and can provide tailored guidance to address your specific needs.
We aim to work truly in partnership with our client organisations and to develop a high-quality, competent HR Service for all clients, the HR Provider that they can rely on and who gets to understand the culture and vision of your business.
