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Best v Embark on Raw Ltd

The dismissal of an employee was automatically unfair because she had made protected disclosures (whistleblowing) relating to her employer’s lax and inadequate implementation of their own COVID-19 protocols at her workplace during the early part of the pandemic.

Background

Ms Best worked a sales assistant at a small business selling pet food. It was allowed to stay open during the COVID-19 pandemic because it was classed as an essential business. She had less than one year’s service. When COVID-19 hit, her employers instructed its staff about COVID-19-secure measures at work. However, not long afterwards Ms Best became worried that masks were not being worn, social distancing was not observed, and staff were not self-isolating when family members had symptoms. She raised her concerns with the directors. She was asked to be ‘realistic and not paranoid’ and it was suggested to her that ‘social distancing is a guide under workplace rulings, it says ‘where possible … 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’. Ms Best’s actions led to a degree of hostility from other staff. She was branded ‘paranoid, petty and obsessed’ but without any investigation into her complaints. She was dismissed for what her employer claimed was her rude and confrontational manner with co-workers and managers. She brought various claims, among them one of automatic unfair dismissal for whistleblowing under s. 103A of the Employment Rights Act 1996 (ERA). (Another complaint related to harassment on the grounds of age and sex).

Tribunal decision

Her complaints under ERA, s. 103A and s. 43B were upheld.

Ms Best’s concerns were that the procedures put in place by her employer were not actually implemented and enforced in practice. She was extremely worried that neither the management nor the staff were consistently following the relevant rules and were thus endangering not only her health and safety but also that of others. She gave information which was specific in relation to named individuals, location, dates and times, background circumstances and details of those incidents which she reasonably believed tended to show endangerment to health and safety. She had that belief because, she said, the employer’s guidance and COVID-19 discipline was being ignored and/or flouted by her co- workers and managers. The tribunal was satisfied that the words and actions of Ms Best which ultimately created the divide between her and her employer were those which amounted to protected disclosures about endangerment to health and safety at the shop. The principal reason for Ms Best’s dismissal was that she made protected disclosures. One of the consequences of those disclosures was the complaint from her colleagues, which the employer accepted ‘without intervention, with no proper investigation’ and so dismissed her to preserve its residual workforce.

The next question for the tribunal was whether Ms Best had been dismissed and subjected to detriments (ERA. S 47B) because she made these complaints and it had no hesitation in concluding that she was.  The acts and omissions of the employer caused detriment and were done on the ground that it wanted to dismiss Ms Best as swiftly as possible following the disclosures to which her colleagues objected and which the employer perceived to threaten its business and reputation. The dismissal was rushed through with a flawed procedure because the employer wanted Ms Best to be ‘let go’ as soon as possible

Link to judgment: https://www.bailii.org/uk/cases/UKET/2022/3202006_2020.html

Comment

This case is a stark reminder to employers about the legal tests for whistleblowing. Too often, employers faced with whistleblowing claims, focus on trying to show that they had done nothing wrong and argue therefore that the employee cannot bring a claim of whistleblowing. However, the correct test is: Did the employee have a reasonable belief that their employer was not complying with, for example, the law or its own policies - and that this was in the public interest (this doesn’t mean everyone in the country, but more than just the employee personally)? Unlike other pandemic cases, the employee here was not complaining that the employer had not brought in COVID-19 safety precautions - her protected disclosure was that neither the management nor staff implemented or enforced them in practice and this endangered her health and the health of others.

The learning point for employers is that there will be varying levels of concern amongst employees as they return to the office and it is important to sit down with them and understand the issues, ask them to bring particular incidents to management’s attention and to reiterate to staff about the importance of complying with rules and the sanctions for not doing so. Concerned employees should be asked perhaps to channel their concerns through a manager rather than constantly trying to address them with the alleged perpetrators. Although it may be tempting to dismiss an employee who hasn’t been there for two years and who is not getting on with other staff, there are 30 exceptions to the need to have two years’ service to bring an unfair dismissal claim - and whistleblowing is one of them. And remember that compensation for whistleblowing is not capped at a year’s salary or £89,543 whichever is the lower - it is unlimited.