Employment Law Case Update: Covid-19 Whistleblowing Dismissal

Covid-19 has had a significant impact on the world of Employment Law and we are just now starting to see rulings in tribunal cases involving decisions employers made during that time.  Our Employment Law team today review the case of Ms Leigh Best v Embark on Raw Ltd 2021 in which the Employment Tribunal (ET) found that an employee had been unfairly dismissed for raising concerns about COVID-19 safety measures. 

Ms Best was employed by the company from January 2019 until her dismissal in May 2020. In March 2020, her employer implemented COVID-19 safety measures such as social distancing and limiting the amount of customers allowed in the shop at any one time. However, the ET heard that these measures were not enforced in practice and Ms Best became seriously concerned about the health and safety of herself and others. She raised her concerns with the business owners, Mr and Mrs Fletcher, including that her colleagues were not wearing masks or socially distancing. She also requested hot water be supplied to the shop to wash her hands. This was not just because of COVID-19 but also because her job involved handling raw meat.

The ET found that in response the employer downplayed Ms Best’s concerns and called her “paranoid”. There was no investigation to determine if her concerns were justified, and even though neither owners were at the business full time, they trusted the other employees and had told Ms Best “you just need to relax and stop digging the youngsters”.

Shortly after this, another worker made a complaint about Ms Best, claiming she “treated me and the other employees as kids and wanted to boss us around” and that some of the other employees were considering leaving the business. Mrs Fletcher then had a call with Ms Best, alleging that she had created a “divide in the business.” Ms Best explained that she was “petrified” for her health and safety and reiterated that her colleagues frequently failed to socially distance. At the conclusion of this call, Ms Best was issued with a verbal warning, but no record of this warning was made. 

Ms Best then went off sick. Before her return in May 2020, a meeting was arranged between her and the owners, which concluded with her dismissal. Ms Best was not told the meeting would be a disciplinary hearing, she was not given a copy of the allegations against her, nor was she given an opportunity to prepare. At the meeting Mr Fletcher said that he was fearful other staff would leave if he did not dismiss her. The ET found that this clearly showed a nexus between the making of the disclosures and dismissal, since the other employees’ complaints were a direct result of Ms Best’s disclosures.

Ms Best appealed her dismissal which was unsuccessful. She then brought claims against her employer for unfair dismissal, harassment, and victimisation.

As Ms Best did not have two years’ service she could not bring an ordinary claim for unfair dismissal. Instead, she claimed she had been unfairly dismissed for the automatically unfair reason that she made protected disclosures. The ET found that the employer had failed to produce any evidence that there were valid conduct reasons for dismissing Ms Best, with Judge Elgot concluding “that the principal reason for the dismissal was the making of protected disclosures.”

The ET then turned to Ms Best’s claim that Mr Fletcher harassed her due to her sex and age. Mr Fletcher had directly asked Ms Best whether she was menopausal, despite her stating that she did not wish to discuss the topic. On another occasion, Mr Fletcher read aloud a newspaper article about how doctors may need to prioritise younger and fitter people for receiving ventilators as they are more likely to survive. By making this comment, Mr Fletcher was playing on Ms Best’s anxiety by implying she was not one of the “younger and fitter” people. The ET found that both of these incidences had the purpose or effect of violating Ms Best’s dignity and creating a humiliating environment at work. Her claim of harassment therefore also succeeded.

A remedy hearing was scheduled for a later date. The ET was satisfied that because the employer failed to follow the ACAS Code on Disciplinary and Grievance procedures, a 20% uplift would be appropriate at the remedy stage.

This case reminds employers of the risk in failing to take health and safety concerns seriously. Even where an employer feels they have taken all necessary precautions, they should still meet with the employee and investigate their concerns. Deciding to discipline or dismiss an employee who raises issues of health and safety can be costly, as compensation for successful whistleblowing claims are uncapped. 

If you have any questions regarding this article, you can call our Employment team today on 023 8071 7717 or email employment@warnergoodman.co.uk.

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ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.