Employment Law Case Update: Whistleblowing and Unfair Dismissal

As an employer, it is more than likely that you will at some point have to dismiss an employee. Whether this is done through redundancy or due to gross misconduct, fair dismissal procedures should always be followed to avoid potential unfair dismissal claims. Ali v Indian Cuisine is an example of the repercussions employers can face for unfairly dismissing employees.

 In Ali v Indian Cuisine, Mr Ali had worked at Tamarind Kitchen, which specialised in upmarket Indian cuisine, since 2016.

In June 2018, he and five other members of staff raised concerns about using chicken stock for vegetarian/vegan dishes, the accuracy of the allergy information and the description of meat-free products with the kitchen manager, Mr Malik.

Mr Malik investigated the matter and concluded that chicken stock was being used under the instructions of Michelin-starred chef, Karunesh Khanna.  Mr Malik was told to keep selling the dishes as if they were suitable for all dietary requirements and when he explained that the team members would not be happy about this he was told “those members of staff need to be phased out.”

Mr Ali was concerned that this exposed their customers to food that was against their religious and philosophical beliefs and potentially unsafe. Mr Malik was told to make Mr Ali redundant but he was unhappy about this himself.  Instead, the chain’s HR consultant made Mr Ali and another assistant manager redundant on 30 June 2018.

Mr Ali appealed but realised at the meeting that its outcome had been predetermined, finding his concerns unfounded after an investigation.

Mr Ali phoned hygiene and food safety consultant Food Alert, pretending to be a journalist. He also accessed emails between Khanna and Food Alert. Due to his actions, Tamarind alleged that Mr Ali was not a credible witness. However, because of the use of generic passwords at Tamarind and the ease of reading other members of staff’s communications, the Employment Tribunal (ET), while critical of Mr Ali for lying to Food Alert, found him to be credible.

At the hearing, the restaurant’s lawyers argued that six members of staff had complained about the chicken stock but only two were made redundant so this showed that the restructuring because of a new restaurant re-opening was the reason for the dismissals and not their whistleblowing.

The ET accepted that the claimant would have been made redundant even if he hadn’t made a protected interest disclosure. However, they ruled that Mr Ali’s whistleblowing was the “principal reason why the claimant was dismissed on the 6 July 2018. Therefore, Mr Ali’s dismissal was automatically unfair.” Mr Ali’s compensatory award will be limited to one month’s pay because he would have been made redundant just one month after his actual dismissal.

This case serves as a useful reminder that employers should always follow a fair procedure when dismissing employees to prevent claims of unfair dismissal from being brought. The fact the employee has already been selected for redundancy will not stop a tribunal from finding unfair dismissal.

If you have any questions on how to conduct an investigation, or how to carry out disciplinary proceedings please contact the Employment team on 023 8071 7717 or email them at 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.