Employment Law Case Update: Protected Disclosure Dismissal

Whistleblowing, health and safety and protected disclosures are an increasing side effect of the Covid-19 pandemic, with employees raising concerns with their employers regarding the health and safety of being in the workplace during the pandemic.  It is important that employers are aware of the steps that should be followed should an employee raise such a concern with them and today, our Employment Law team reviews the case of Dr M Parsons v Barnabas Fund [2019] and a lamentable reaction to an employee raising health and safety concerns.  

Dr Parsons had worked for the Barnabas Fund since October 2015. In 2018 he was scheduled to go on a speaking tour for the Charity. The tour required Dr Parsons and his fellow speakers to undertake many hours of driving, sometimes very late at night and with little rest.

Dr Parsons informed his superiors, Mr Storm and Dr Sookhdeo, that he was concerned with the length of the journey, calling it “a serious health and safety issue.” In an email to them he said: “There are legal limits for driving and working…. If we ignore this – and we have an accident – either on the way back from Clitheroe or the next night driving back from Exeter at midnight – then the health and safety executive will treat that very seriously – and both you and the trustees will be legally liable.”

Mr Storm considered this warning “insubordination and as refusal to follow an instruction,” and Dr Sookhdeo called Dr Parsons “a snake” and “manipulative” and then proceeded to ostracise him at work. Dr Parsons was taken off the tour and was subsequently excluded from key meetings.

Dr Parsons was then informed that he was being suspended pending an investigation into whether there had been a breakdown in trust and confidence between himself and the Charity. Soon after, Dr Parsons was invited to a disciplinary hearing by letter. This letter alleged that Dr Parsons had been insubordinate and had breached the trust and confidence of the Charity. At the hearing Dr Parsons explained he believed he was being poorly treated because he had made a health and safety disclosure. After the hearing Dr Parsons was dismissed, and he subsequently filed a claim for automatic unfair dismissal.

Dr Parsons argued that he had been subjected to disciplinary procedures and subsequently dismissed because he had made a protected disclosure, namely his email in which he expressed a health and safety concern over the length of time he and his colleagues would be driving late at night. The Charity argued that Dr Parsons had been dismissed because he had been insubordinate and that there had been a breakdown in trust and confidence which was unconnected to the health and safety disclosure.

The Employment Tribunal (ET) rejected the Charity’s argument, and found that Dr Parsons had been subjected to disciplinary procedures and dismissed because he made a protected disclosure. In reaching this conclusion Judge Bax referred to the fact that the letters informing Dr Parsons of his suspension and inviting him to a disciplinary hearing “made clear references to the health and safety concern being insubordination and a breach of trust and confidence”. In light of this evidence the ET concluded “the effect of the health and safety concern was inextricably linked to the reason for the [Charity] terminating [Dr Parson’s] employment and the [Charity] was unable to detach that major factor from its decision”.

Dr Parsons’ claim for automatic unfair dismissal was successful and a remedy hearing will be scheduled at a later date. As this was a claim for automatic unfair dismissal, the potential award is uncapped.  

This case demonstrates why it is important for employers to understand when an employee has made a protected disclosure and is therefore entitled to protections under the Employment Rights Act 1996. Under the Act, an employee who makes a protected disclosure must not be dismissed, subjected to any detriment or disciplined for making that disclosure. Further, employers must understand that making a protected disclosure is not a form of insubordination or a breach of trust and confidence. Concerns raised by employees about workplace health and safety or potential criminality should be taken seriously and addressed. Employers should also ensure they have a clear whistleblowing policy in place and that managers understand their responsibilities towards employees who make protected disclosures.

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.

This was previously part of our weekly Employment Law Newsletter. If you would like to subscribe, please email us at events@warnergoodman.co.uk or just fill in our subscription form.

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.