Dismissal of ‘Covid Procedures Whistle-blower’ Automatically Unfair

An employment tribunal found that the dismissal of an employee for persistently raising concerns criticising her co-workers about their failure to adhere to covid safety measures was automatically unfair. The employer had felt that they faced a situation whereby either the employee was dismissed, or they would lose all or a substantial number of their other workers and the business would collapse.

The case of Best v Embark On Raw Ltd highlights the protections whistle-blowers have and the importance of handling tricky situations appropriately. It also shows that the increasing focus on the menopause and the workplace is likely to be an ongoing trend with the employee in this case also succeeding in a sex discrimination claim after being asked in a conversation whether she was menopausal.

 

The Facts of the Case

The employee worked as a Sales Assistant for a small business selling pet food and had done so for less than two years. In March 2020 the employer put in place ‘covid-safe’ policies and as an essential business stayed open during lockdown as it was permitted to do.

The employee was concerned that some of the covid-safe procedures were not actually implemented and enforced in practice and were not consistently followed. She believed that this was endangering her health and safety and that of others and she raised several concerns with the owners, these included that her colleagues were failing to follow the employer’s instructions to socially distance from her and from each other. The complaints were downplayed by the employer. The employee persisted in her complaints that her colleagues were not compliant.

On 23rd April 2020 a telephone complaint was made about the employee by a colleague on behalf of herself and others. She complained that the employee persistently ‘harangued’ them about their alleged failures to wear masks and socially distance. It was made clear to one of the owners that the employee’s colleagues would not tolerate this behaviour from the employee and that some or all of them were considering leaving the company.

The next day the owner arranged a telephone conversation with the employee, she was told she had created a “bit of a divide in the business”, she had “ranted off” and said things that didn’t need to be said. The employee re-iterated her concerns about her colleagues’ actions. She was given a verbal warning and told she must “get on with everybody or we’ll have to call it a day”.

The employee took sickness absence from 24th April – 11th May. She requested a meeting prior to her return, she had intended and expected this to be an opportunity to discuss her concerns. However, unbeknown to the employee when the meeting was held it turned out to be a disciplinary meeting following which she was dismissed. The dismissal letter referred to “various concerns we had regarding your conduct and professionalism dating back to 2019”. The employee unsuccessfully appealed.

She complained to the employment tribunal that she had been automatically unfairly dismissed and subjected to detriments for making protected disclosures (‘whistle-blowing’), subjected to harassment related to sex and age and had been victimised. She won her case, and the judge found amongst other things that:

  • The concerns the employee had raised were protected disclosures – she had a ‘reasonable belief’ that the information she disclosed tended to show the endangerment of health and safety and that she had a reasonable belief that raising the matters was ‘in the public interest’. They were not as the employer had tried to argue only “obsessive personal concerns”.

 

  • The employee was dismissed because of the disclosures she made and the consequences of those complaints in terms of working relationships. This was automatically unfair. Furthermore, the judge commented that no independent intervention such as mediation was attempted, the co-workers’ complaints that they were being badly treated by the employee were believed without investigation and the employee was identified as the source of all the relevant ‘alienation’ at work.

 

  • The protected disclosures materially influenced the actions of the employer which resulted in detriment to the employee. The employer was found to have rushed through with a flawed procedure because they wanted to dismiss the employee as swiftly as possible following the disclosures to which her colleagues objected and which the employer perceived to threaten their business.

 

On a separate matter, it was also found that the employee had been harassed when following a conversation with a customer who mentioned having a ‘hot flush’ one of the owners “invaded the employee’s privacy, broached a highly sensitive topic for her and acted tactlessly in directly asking her, as an employee having the protected characteristic of sex as a woman, whether she was menopausal”. This had the effect of violating the employee’s dignity and of creating a humiliating environment for her at work.

 

Kingfisher’s Advice

With work from home guidance having ended in England many employers will be bringing employees back into the workplace (or may have already done so). Whilst a return is likely to be a smooth one for many, as this case highlights, it’s important to be alert and to act appropriately if concerns such as those regarding health and safety are raised at any time. If this occurs in your organisation you should contact Kingfisher Professional Services Ltd for advice on the facts of your situation.

If you have an employment matter you would like assistance with, please do not hesitate to contact us as we are happy to help.

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