Employment Rights Act 1996 S98

Understanding the Employment Rights Act 1996, Section 98: Protection Against Detrimental Treatment

The Employment Rights Act 1996 (ERA 1996) is a cornerstone of UK employment law, providing a framework for protecting employees' rights. Section 98, in particular, is crucial for understanding an employee's protection against detrimental treatment resulting from whistleblowing or asserting their statutory rights. This article will delve deeply into Section 98, explaining its provisions, implications, and the defenses available to employers. We will explore case law and practical examples to provide a comprehensive understanding of this vital piece of legislation.

What is Section 98 of the Employment Rights Act 1996?

Section 98 of the ERA 1996 prohibits employers from subjecting employees to detrimental treatment because they have made a protected disclosure (whistleblowing), or because they have taken action to assert their statutory employment rights. This protection is vital because it prevents employers from retaliating against employees who highlight wrongdoing or challenge unfair practices. Detrimental treatment encompasses a broad range of actions, from dismissal to demotion, less favourable treatment, or even subtle forms of harassment. The key is that the detrimental treatment must be because of the protected disclosure or the assertion of statutory rights.

Protected Disclosures (Whistleblowing): The Key Trigger for Section 98 Protection

A crucial aspect of Section 98 is the concept of a "protected disclosure." This refers to informing a prescribed person of information which the worker reasonably believes:

• Tends to show one of the six qualifying categories of wrongdoing listed below.
• Is in the public interest. It's not just about the worker's personal grievance. The disclosure must have wider implications.

The six qualifying categories of wrongdoing are:

1. A criminal offence.
2. A failure to comply with any legal obligation.
3. A miscarriage of justice.
4. A danger to the health and safety of any individual.
5. Damage to the environment.
6. Deliberate concealment of any of the above.

It is important to note that the worker only needs to reasonably believe the information tends to show one of these categories. This means they don't need to be absolutely certain, but their belief must be grounded in reasonable evidence.

Assertion of Statutory Rights: Another Trigger for Section 98

Section 98 also protects employees who have taken action to assert their statutory employment rights. This includes:

• Bringing a claim to an employment tribunal: This could be for unfair dismissal, discrimination, or breach of contract.
• Raising a grievance with their employer: This is a formal complaint about a workplace issue.
• Participating in trade union activities: This covers activities like attending meetings, joining a strike (if lawful), or acting as a union representative.
• Cooperating with an investigation: This could be an investigation by the employer, a government body, or the police.

What Constitutes Detrimental Treatment Under Section 98?

The definition of "detrimental treatment" is broad and encompasses any action that is to the employee's disadvantage. Examples include:

• Dismissal: This is the most obvious form of detrimental treatment.
• Demotion: A reduction in rank or responsibility.
• Reduction in pay or benefits: Any decrease in remuneration or other entitlements.
• Transfer to a less desirable role: A change of job that is less favourable in terms of duties, responsibility, or location.
• Disciplinary action: This could be a warning, suspension, or other form of punishment.
• Harassment or victimisation: This includes any form of bullying or intimidation.
• Refusal of training or promotion opportunities: Denial of chances for professional development.
• Isolation or exclusion from workplace activities: Being ostracised by colleagues or excluded from important decisions.

Establishing Causation: The Crucial Link

The crucial element for a successful claim under Section 98 is establishing causation. The employee must demonstrate that the detrimental treatment was because of the protected disclosure or the assertion of statutory rights. This doesn't necessarily mean it was the sole reason, but it must have been a significant contributing factor. The employer's intention is not relevant; the focus is on whether there is a causal link between the protected act and the detrimental treatment. Tribunals will consider all the evidence, including the timing of events, any statements made by the employer, and the overall context of the situation.

Defences Available to Employers Under Section 98

While Section 98 provides strong protection for employees, employers do have some defenses available. These include:

• The action was taken for a reason unconnected to the protected disclosure or assertion of rights: The employer must demonstrate that the detrimental treatment was based on legitimate business reasons unrelated to the employee’s protected activity. This requires strong evidence and a convincing explanation.
• The employer would have taken the same action regardless of the protected disclosure or assertion of rights: This is a difficult defense to establish and requires the employer to demonstrate that the detrimental treatment would have occurred even if the protected act had not taken place. This often involves showing the existence of pre-existing performance issues or other legitimate grounds for the action.

Case Law and Practical Examples

Several landmark cases have shaped the interpretation and application of Section 98. These cases illustrate the complexities of establishing causation and the various forms of detrimental treatment that may be covered. For instance, a case might involve an employee who is dismissed shortly after reporting concerns about financial irregularities within the company. If the timing is close and there is no other plausible explanation for the dismissal, a tribunal is likely to infer causation. Another example could involve an employee who is subjected to a campaign of bullying and harassment after raising a grievance about unequal pay. This could also constitute detrimental treatment under Section 98.

Frequently Asked Questions (FAQs)

Q: What if I'm unsure if my disclosure is protected?

A: If you're uncertain, it's best to seek legal advice. The definition of a protected disclosure can be complex, and a lawyer can help assess your situation.

Q: How long do I have to bring a claim under Section 98?

A: You generally have three months from the date of the alleged detrimental treatment to bring a claim to an employment tribunal.

Q: What remedies are available if my claim is successful?

A: The tribunal can award various remedies, including reinstatement, re-engagement, compensation for loss of earnings, and an award for injury to feelings.

Q: Can I be dismissed for making a protected disclosure?

A: While dismissal is a form of detrimental treatment, it's crucial to understand the circumstances. If the dismissal is solely because of the protected disclosure, it will likely be unfair and unlawful under Section 98. However, there might be other reasons for dismissal that are not related to the disclosure.

Q: What if my employer retaliates subtly?

A: Even subtle forms of detrimental treatment, such as isolation or exclusion, can be covered by Section 98. It's vital to document all instances of potentially detrimental treatment and seek legal advice if necessary.

Conclusion

Section 98 of the Employment Rights Act 1996 is a powerful tool for protecting employees against detrimental treatment related to whistleblowing or the assertion of their statutory rights. Understanding the nuances of protected disclosures, detrimental treatment, and the concept of causation is crucial for both employees and employers. While the legislation offers robust protection, establishing a successful claim requires careful consideration of the facts and evidence. Seeking legal advice is always recommended if you believe you have been subjected to detrimental treatment in violation of Section 98. This article provides a comprehensive overview, but legal advice tailored to your specific circumstances is essential for navigating the complexities of this vital piece of employment legislation. Remember, your rights are protected, and understanding them is your first step towards ensuring fair treatment in the workplace.