Employment Tribunal confirms that protected disclosures can give rise to whistleblowing detriment claims where an employer later provides an unjustifiably negative reference.

Workers who make protected disclosures are protected under the Employment Rights Act 1996 from suffering a detriment because they have made those disclosures. A recent Employment Tribunal decision provides a useful reminder of the breadth of this protection and the importance of keeping a clear distinction between legitimate employment decisions and any concerns raised by an employee.

In Mr M Steward v Oxfordshire County Council & Others, the Tribunal considered whether a school had subjected a former site manager to whistleblowing detriments after he raised a number of health and safety concerns. The Tribunal found that two negative employment references amounted to unlawful detriments and awarded compensation of £32,942.46.

Mr Steward was employed by a school as a site manager from July 2023. During his employment, he raised a number of health and safety concerns with the school business manager and headteacher. Those concerns included defective emergency lighting, fire safety issues, inadequate maintenance, legionella risks, the absence of proper fire drills and various trip hazards. He later raised further concerns in correspondence with the Health and Safety Executive and the school's management.

The headteacher had separately raised concerns with HR about Mr Steward's conduct and performance. However, despite receiving HR advice, the school did not take formal action against him during his employment.

Mr Steward resigned on 5 December 2023 after securing another role at a different school. His prospective employer requested a reference from his former employer.

The reference provided by the headteacher was highly negative, with “strongly disagree” recorded against all the assessment criteria. Following receipt of the reference, the prospective employer withdrew its offer of employment.

Mr Steward later obtained another position at a different school. The same negative reference was provided, although the second employer nevertheless went ahead with the appointment.

Mr Steward brought claims alleging that the references, the handling of his grievance and his placement on garden leave amounted to detriments because he had made protected disclosures.

The Tribunal found that Mr Steward's health and safety concerns were protected disclosures. Under the whistleblowing provisions of the Employment Rights Act 1996, a disclosure may be protected where the worker reasonably believes that it tends to show, among other things, a breach of a legal obligation or danger to the health and safety of any individual, and that the disclosure is made in the public interest.

The Tribunal confirmed that it was not necessary for Mr Steward to name specific legislation when raising his concerns. The relevant question was whether he believed that the information showed or tended to prove wrongdoing of the type protected by the legislation. The Tribunal accepted that he genuinely held such a belief. It also found that the disclosures were made in the public interest, noting that health and safety concerns within a school potentially affect pupils, staff and visitors and are therefore not merely matters of private interest.

Section 47B of the Employment Rights Act 1996 provides protection against suffering a detriment because of a protected disclosure. The Tribunal found that the first reference amounted to a detriment. Of particular significance was the disparity between the school's contemporaneous approach to Mr Steward's alleged performance issues and the content of the later reference. Although the reference presented a picture of significant shortcomings across every aspect of his role, the school had not considered those matters sufficiently serious to call for formal action while he stayed employed. The Tribunal considered this inconsistency significant. It concluded that the reference did not accurately reflect Mr Steward's performance and rejected the school's explanation for its content.

The headteacher was aware of Mr Steward's protected disclosures, and the Tribunal concluded that those disclosures had materially influenced the decision to provide the negative reference. The second reference was also found to amount to a detriment. It was identical to the first reference, and the school did not provide a separate justification for issuing it.

The Tribunal did not, however, uphold the claims relating to the grievance or garden leave. It found insufficient evidence to establish that those decisions related to Mr Steward's protected disclosures.

The decision provides a number of important practical lessons for employers, particularly schools and colleges.

First, employers should carefully separate whistleblowing concerns from performance and conduct management. An employee's decision to raise concerns should not influence later decisions concerning their employment.

Secondly, decision-making should be supported by contemporaneous evidence. Where an employer later relies upon performance or conduct concerns, it will be important to prove that those concerns were genuinely held and documented at the relevant time.

Thirdly, employers should exercise caution when preparing references for employees who have made protected disclosures. A reference should be correct, fair and supported by evidence. Significant discrepancies between an employee's contemporaneous employment record and a later negative reference may invite scrutiny from an Employment Tribunal.

Schools and colleges must also consider their safeguarding obligations when providing references. The Keeping Children Safe in Education 2026 guidance requires references to address whether the employer is satisfied about an applicant's suitability to work with children and to provide information concerning substantiated concerns or allegations which meet the relevant harm threshold.

Information concerning allegations or concerns which are unsubstantiated, false or malicious should not be included. This makes it particularly important for education employers to distinguish carefully between substantiated safeguarding concerns and other allegations or workplace disputes.

The decision is a useful reminder that whistleblowing protection can have implications beyond the period of employment itself. A worker who has made protected disclosures stays protected from detriment, including where the alleged detriment arises through the provision of an employment reference.

Employers should therefore ensure that any decisions affecting a whistleblower are based on legitimate, independently supportable reasons and that those reasons are properly documented. Where an adverse reference is being considered, particular care should be taken to ensure that its contents are correct, proportionate, evidence-based and consistent with the employer's contemporaneous records.

For schools and colleges, these considerations should be addressed alongside the specific safeguarding requirements applicable to references.

If you need any further advice and help, please do not hesitate to contact the Quest HR Advice Line on 01455 852 028.