Ms Best worked as a sales assistant for Embark on Raw Ltd, a raw pet food company, from 29 January 2020 until 11 May 2020. She raised a number of health and safety concerns about her employers response to the covid-19 pandemic. The relationship between her and her employer became fractured due to these complaints and during an argument with her male manager he exclaimed “she must be on the menopause” in front of customers.
Just before the March 2020 lockdown, Embark on Raw published covid safe policies to its staff via WhatsApp, including the wearing of face masks, social distancing, limited numbers of people in the store and regular hand washing and sanitising. Ms Best made complaints that these procedures were not actually implemented and enforced in practice. She complained that staff did not wear face masks, did not properly social distance, that one staff member came to work with a cough, and another came into work after one of their household was knowingly displaying symptoms of the virus. She also repeatedly asked for a hot water supply in the shop itself rather than having to go out to the freezer unit behind the shop, this was not just for covid-19 hygiene. but because her job involved handling raw meat and blood spillages. She raised these concerns in the work WhatsApp group asking her managers to speak with staff.
Management responded that they were only a small employer (they had 6 members of staff) and “we are doing the best that we can, and we are not breaking any rules. Masks are not required but we do it as an extra measure”. They asked her to be “realistic and not paranoid” in her complaints.
During this time, there were also a couple of incidents between Ms Best and a male manager (Mr Fletcher) where he made various comments about Ms Best’s age and if she was going through the menopause. On one occasion Ms Best was talking to a customer who complained of a hot flush, Ms Best put her hands over her ears and said she did not want to talk about it yet. Mr Fletcher persisted in asking if Ms Best was having hot flushes, even after the customer had left. During an argument, Mr Fletcher shouted to Ms Best in front of customers that ‘she must be on her menopause’. On 31 March 2020, Mr Fletcher read an article out loud to Ms Best that NHS workers would have to ‘play god’ so that younger and fitter people might be prioritised for ventilator treatment because ‘they are more likely to survive’. Ms Best claims Mr Fletcher was clearly implying that she was not one of those ‘younger and fitter people’ with priority and exacerbating her anxieties about the virus.
Ms Best continued to raise health and safety concerns after the only two managers of the business had to isolate at home and were therefore not there to ensure the younger members of staff were complying with covid-19 rules. Again, management dismissed Ms Best complaints, telling her to “relax” and to “stop digging the youngsters”. They took no action to investigate whether Ms Best’s anxieties were justified. In fact, other employees felt that Ms Best was harassing them, claiming that she “just wanted to boss them about” and “constantly went on about it”.
After these complaints by colleagues, management brought Ms Best in for a meeting to discuss her behaviour. There are no records of any complaints, meeting notes or interviews at any stage. There are records of one telephone conversation in which the employer says that they were offended that Ms Best keeps claiming that if she catches covid, it will be from work and that this was “the cherry on the cake”. Management thought that Ms Best had “over-reacted to the pandemic and its potential consequences and that she became obsessive, paranoid and irrational in relation to safety precautions in the work environment”.
Ms Best was dismissed for conduct summarised as rude and confrontational communication with co-workers and managers and ‘causing such an unpleasant environment in the shop that they had no choice but to dismiss’.
Ms Best did not have 2 years’ service but could bring claims for unfair dismissal on the grounds of whistleblowing, for harassment relating to her age and sex and for victimisation.
Ms Best’s claims for dismissal due to making protected disclosures/whistleblowing and discrimination on the grounds of age and sex succeeded. The Tribunal commented that the employer’s lack of disciplinary procedure and documentation of evidence relating to their allegations of misconduct and lack of professionalism for which Ms Best was said to be dismissed concludes that the principal reason for the dismissal was the making of protected disclosures and not these behavioural matters. They said it was likely that the employer had retrospectively constructed a list of misconduct issues to justify a dismissal which was already pre- determined due to Ms Best’s concerns on their implementation of covid-19 safety practices. The Tribunal were satisfied that what created the divide between Ms Best and her employer, which ultimately led to her dismissal, were protected disclosures about endangerment to health and safety at the shop.
The tribunal also found that the claimant’s harassment and victimisation claims were well founded. The Claimant had complained about Mr Fletcher’s remarks and was then subjected to detriments, including in part the decision to dismiss her.
The claim has been listed for a separate remedy hearing later this month (although often successful claims settle before the remedy hearing is necessary).
Concerns raised relating to covid-19 practices will be treated in the same way as any other health and safety disclosure and there has been an increase in claims of this type arising from the pandemic. Whistleblowing is particularly complex for both employees and employers but it’s worth noting that in order to qualify for protection, employees have to overcome a number of hurdles about the nature and subject matter of their disclosure and why they believed they were making it, including whether it was in the public interest. If they have been subjected to a detriment or dismissed, they also have to link the disclosure to the detriment or dismissal, either as the sole reason or the principal reason for the treatment.
Conversely, employers face the prospect of fighting whistleblowing claims against employees who have less than 2 years’ service, which isn’t required to bring such a claim and also unlimited compensation where claims are well-founded. Whilst it is uncommon for costs to be awarded in the employment tribunal, whistleblowing claims result in the highest number of costs awards against claimants, likely reflective of short-serving employees trying to bring themselves within the definition of a whistleblower where they would otherwise be unable to claim.
Where an employee makes what could be a protected disclosure, employers need to redouble their efforts to ensure no detriments or dismissals result from it. If the employee is being dismissed for another reason, employers must ensure there is a paper trail which points clearly away from the disclosure being the reason for the dismissal.
If you have any queries in relation to whistleblowing or any other HR queries please contact 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.