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A “foot long” recipe for a tribunal claim!

Employees are protected from being dismissed where the reason for dismissal is because they have made a protected disclosure. In those circumstances, a dismissal will be automatically unfair, even where the employee does not have two years’ service. To be “protected”, there must be a disclosure of information which tends to show, in the reasonable belief of the person making it, some sort of wrongdoing has occurred or is likely to occur (such as a criminal offence or breach of legal obligation), and that it is in the public interest.

In this week’s alert, we look at a Scottish Employment Tribunal case in which the employer, which operated a Subway franchise, failed to take various concerns raised by an employee seriously, and subsequently terminated her employment after two months.

K Reilly v RT Management Bridgeton Limited

RT Management Bridgeton Limited operated a Subway franchise at a petrol station in Glasgow. Ms Reilly started working for them in August 2020 as a sandwich artist. Ms Reilly has a complex medical history and has been diagnosed with a number of conditions such as Mast Cell Activation Syndrome and Histamine Intolerance, having experienced symptoms since childhood, which were described as “extremely debilitating”. At her interview she explained she was undergoing medical examinations, and that she was suffering from fatigue, joint problems and had a number of allergies.

Ms Reilly underwent a medical assessment at her employer’s request and a medical declaration was prepared which stated that she had atopic dermatitis which means she can’t use hand sanitiser but she has prescription hand wash and lotion and carries an EpiPen due to allergies. Upon receipt of this, she highlighted to her employer it did not include all of the information she had given about her health problems and symptoms.

Ms Reilly made a number of disclosures which included, but was not limited to, the lack of precautions being taken by RT Management to minimise the risk of Covid-19, health and safety practices regarding the food being served, lack of protective equipment and lack of rest breaks.

Mr Lahar, Ms Reilly’s manager, was aware that Ms Reilly was undergoing medical tests and examinations, and he made disparaging comments such as ‘NASA should send her back to space’, that she was being ‘experimented on’ and was ‘a science experiment’. He was aware that she was required to carry an EpiPen due to the severity of her allergies; however, he tried to encourage her to eat foods which she is allergic to, making comments such as ‘Go on, what’s the worst that could happen?’, whilst waving various products under her nose. She subsequently disclosed to Mr Lahar that she is vegan, to which he laughed at her, made jokes about her veganism and encouraged her to handle and eat meat.

Ms Reilly raised further concerns when Mr Lahar served dairy cheese to a customer who had ordered a vegan sandwich, on the basis that the vegan alternative cheese had run out and that it should be substituted with dairy cheese. Ms Reilly told him that it was dangerous to serve a dairy product to someone who is allergic to dairy and that allergic reactions could be dangerous and even fatal. She also raised concerns about food not being disposed of at the right time, meatballs being kept warm and reheated if not used and lack of cleaning time at the end of her shifts.

Ms Reilly said that Mr Lahar did not seek to rectify any of her concerns and continued to do what she had raised concerns about. She therefore contacted the local Environmental Health department which resulted in an inspector visiting the premises. Although she had raised the concerns anonymously, Mr Lahar worked out that it was Ms Reilly who had complained, due to the issues that the inspector investigated on their visit. One of which was a lack of sanitary waste bins which was something else Ms Reilly had raised concerns about but was told that she was ‘the only female of menstruating age who used the toilet’, therefore she had to dispose of such waste on the forecourt. This caused her embarrassment and affected her dignity. Mr Lahar made reference to her having asked about these issues and she felt the atmosphere was tense after the visit.

In September 2020, RT Management deducted £12.60 from Ms Reilly’s wages which she was told was because a customer had cancelled a large Just Eat order, and that the money would be returned to her once the credit was received by the firm’s head office but it was not received.

Ms Reilly also raised her concerns in a work WhatsApp group about lack of rest breaks, lack of cleaning time, lack of deep cleaning, risk to public health and working in excess of her shift hours to clean. The group included the owner and director, who replied saying the conversation would not continue any further. In October 2020, Ms Reilly’s employment was terminated during a telephone call when she was told that she had not passed her probationary period. The probation period was normally 6 months and she had not been told it may be reviewed earlier than this.

Ms Reilly brought claims for automatically unfair dismissal for making protected disclosures – she said she was dismissed because she had raised concerns about health and safety practices and entitlement to rest breaks. She also brought claims for harassment (relying on the protected characteristics of sex, disability and belief in veganism), unlawful deductions from wages and claims under the Working Time Regulations 1998 in respect of breaks worked.

Decision

The tribunal accepted Ms Reilly’s evidence and that she had been dismissed because she had made protected disclosures about health and safety concerns and lack of rest breaks. These tended to show the likelihood of breaches of legal obligations in respect of health and safety, or of endangerment to health and safety. At the time she made them, she reasonably believed this to be the case and therefore they amounted to qualifying disclosures for whistleblowing purposes. She was trying to protect employees and customers and therefore made the disclosures in the public interest. Her whistleblowing claim was therefore successful, and she was awarded compensation for loss of earnings.

The tribunal was satisfied that she was disabled within the meaning of the Equality Act 2010 and that her employer knew this to be the case. Mr Lahar’s comments to Ms Reilly about her medical tests and allergies amounted to harassment under the Equality Act 2010. Also, it found that for Ms Reilly, veganism was a philosophical belief and was therefore protected under the Act. Mr Lahar’s conduct around encouraging her to eat meat and waving meat in front of her face amounted to harassment on that basis. The issues around the sanitary waste bin also amounted to harassment related to her sex. She was awarded £10,000 for injury to feelings in the mid-band of Vento.

Ms Reilly was successful in all of her claims and was awarded £12,636.40 overall for unfair dismissal, injury to feelings, unauthorised deduction from wages and breach of the Working Time Regulations 1998.

Comment

If employees raise concerns about some sort of illegal, unethical or otherwise unacceptable conduct or practice, the concerns should be taken seriously. Employers should have a whistleblowing policy as a minimum, which should be properly implemented and should provide for disclosures to be investigated promptly and confidentially. This is not only good practice but also reduces the likelihood of external disclosures being made outside of the business before they have been addressed internally. Confidentiality clauses cannot be used as a substitute for this. Managers should be properly trained on how to deal with such concerns, and also the protection afforded to people who have made such disclosures.

It is also important to be able to recognise when concerns may amount to a protected disclosure. Taking action such as dismissal or anything short of dismissal which may amount to a detriment when someone has for example raised a health and safety concern can give rise to claims such as this, so employers should exercise caution before taking action to make sure that it is not connected to the disclosure that has been made.

If you have any queries arising from this case or claims against your business concerning a Whistleblowing complaint or would like to discuss any other issue of providing training for your staff, please contact one of our Employment team on 01228 552600 or 01524 548494.

This alert does not provide a full statement of the law and readers are advised to take legal advice before taking any action based on the information contained herein.

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