Employee who blew whistle on COVID safety was unfairly dismissed

January 25, 2022

A pet food retailer unfairly dismissed an employee after she raised concerns about health and safety and blew the whistle on managers and colleagues flouting COVID-19 rules.

An East London employment tribunal found that Mrs. Best, who worked at raw pet food company Embark on Raw in Billericay, Essex, made protected disclosures when she raised alarm over colleagues not wearing face coverings – although these were optional at the time – and ignoring social distancing guidelines.

Best also complained about not having access to hot water to wash her hands while in her main place of work, despite having to handle raw meat, and expressed concern about a colleague who continued to work while someone in his household appeared to have COVID-19 symptoms – however she later found out the individual did not have the virus.

She also made a claim for harassment related to her age and sex, alleging that the company owner suggested she might be menopausal.

The tribunal was told that Best “expressed extreme anxiety and stress” after witnessing a colleague coughing in the shop while not wearing a mask.

She raised her concerns about mask-wearing on a WhatsApp group which included several of her colleagues. She ended her message by asking managers to speak to staff about what she perceived to be a “worrying situation”.

The organisation dismissed her health and safety concerns and told her “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”.

She was told to “relax” and “stop digging [sic] the youngsters”.

The tribunal’s judgment says: “The claimant’s reasonable belief in the endangerment to health and safety is evidenced by the fact that she was present in the shop and observed and noted the actions of her colleagues.

“There is no documented investigation of the claimant’s allegations; there is no evidence from the respondent that any steps were taken to interview the other five employees or speak to them individually or collectively to find out if the claimant’s anxieties were in fact justified. On the contrary the respondent entirely believed the co-workers’ complaints that they were the ones being treated badly by Mrs. Best.”

In April 2020 a colleague made a complaint about Best, which started that she would “boss” other staff around and treated colleagues “as kids” about the alleged failures to wear masks and socially distance. The complainant said that she and other colleagues were considering leaving the company because of Best.

The following day, one of the company owners phoned Best and told her that she had “created a bit of a divide in the business” and accused her of having “ranted off” about COVID measures. She was worried that Best would expose her business as the source of any illness she might contract.

The claimant was given a verbal warning, but this was not formally logged despite the warning being given as part of the reason for her dismissal a few weeks later.

The judgment says: “Without further investigation of the employee complaints and/or previous actions of the other employees the respondent imposed detriment and eventually dismissed the claimant as a direct result of her protected disclosures and the consequences of those complaints in terms of working relationships.

“No independent intervention such as mediation was attempted. The co-workers were believed and the claimant was identified as the source of all the relevant ‘alienation’ at work.”

One director told the tribunal that after hearing about the complaint against Best, he told his wife that “it’s time to let her go now…they can’t work with her and I can’t work with her, we have to let her go”. He said that he was faced with a situation where either Best was dismissed or he would lose all or a substantial number of his other employees, which would threaten the future of the business.

The tribunal found that the meeting in which Best was dismissed did not comply with the Acas code on disciplinary and grievance procedures as she had been given no notice of the disciplinary allegations against her and therefore no opportunity to prepare a defence or explanation for her actions.

“We find that the principal reason for the claimant’s dismissal on 11 May 2020 was that she made protected disclosures,” the judgment says.

“One of the consequences of those disclosures was the complaint or complaints by her colleagues. The respondent accepted those complaints without intervention, with no proper investigation and sought to preserve its residual workforce by taking the step of dismissing the claimant. The nexus between the making of the disclosures and the dismissal is clearly established.”

Although Best had not been employed at the company for the two-year qualifying period for protection against unfair dismissal, the tribunal found that her claim could succeed because the company had not followed Acas guidance.

A compensation order has not yet been made, but the tribunal found Best would be entitled to a 20% uplift because of the firm’s failure to follow correct disciplinary procedures. Her claims for harassment and victimisation also succeeded.

 

This is valid as of 25th January 2022.

 

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