Employee sacked after raising health and safety concerns during Covid-19 was protected under whistleblowing legislation
The case of Best v Embark on Raw Ltd Case No 3202006/2020 considered what constitutes a protected disclosure for the purposes of the Employment Rights Act 1996 and what protections this allows.
What is whistleblowing?
The Employment Rights Act 1996 (ERA) provides for the law on whistleblowing protections. "Whistleblowing" refers to the act of reporting or exposing wrongdoing, either within an organisation, or externally, for example to a regulator or the press.
What whistleblowing protections exist?
A series of scandals in the 1980s established that there was a culture discouraging the reporting of wrongdoings and viewing individuals that did report such wrongdoings as disloyal. Following this, the Public Interest Disclosure Act 1998 was created to prevent the negative consequences of such a culture.
This has now been updated in the ERA, which gives workers a right not to be dismissed or suffered any detriment at work as a result of making a "protected disclosure".
A protected disclosure is where a "qualifying disclosure" is made to an employer, a person responsible for the relevant failures, legal advisers, Government Ministers or other individuals where certain conditions are met.
A qualifying disclosure is any?disclosure of information?where there is a?reasonable belief?that making the disclosure is in the?public interest?and shows one or more types of wrongdoing or failure of the following kinds:
Such wrongdoing can be past, present, prospective, or simply alleged. It can concern conduct relating to the employer, an employee or a third party.
What were the facts of the Best v Embark on Raw Ltd?
The Claimant worked as a sales assistant in a small shop selling pet food. The shop was classed as essential business and so stayed open throughout lockdowns.
The company put into place various measures to protect staff and customers from coronavirus. However, there was no manager to enforce these measures and the owners only visited the shop on an occasional basis.
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The Claimant became concerned that the policies in place were not being fully implemented or enforced, in turn endangering her health and that of other people. The Claimant raised these concerns with the owners of the business. The owners viewed the Claimant's concerns as "unfair" and suggested she was "obsessive, paranoid and irrational". The owners further went on to state that the policies in place were "only guidance" and as such, they and the other staff were not breaking the rules.
Later, another member of staff complained that the Claimant has "harangued" her and other colleagues for not wearing their masks or socially distancing. She explained that she and her colleagues were not prepared to put up with this and were considering resigning. The owners then spoke to the Claimant, accusing her of creating a "divide" in the business. The Claimant was given a verbal warning and told to get on with her colleagues or "we'll have to call it a day".
The Claimant took two weeks off work, first with COVID-19 symptoms and then with stress-related illness. Shortly before returning to work, she was dismissed during a meeting she thought had been called to discuss her health and safety concerns.
The Claimant had worked for the business less than two years and so was unable to bring a claim for unfair dismissal, but instead claimed that she had been unfairly dismissed because she had made a protected disclosure.
What did the Employment Tribunal find?
The Employment Tribunal upheld the Claimant's claims and found that she had been dismissed because she had made protected disclosures.?The Claimant had disclosed information about the unsafe working practices in the shop that were in the public interest. The Claimant also had a reasonable belief that her concerns showed her workplace endangered the health and safety of herself, colleagues, customers and her family and friends.
There had also been a failure to treat the Claimant fairly during the dismissal process.?
What does this mean for employers?
Employers need to take reasonable steps to ensure that they protect their staff from coronavirus. Where a staff raises concerns, employers do not need to panic. An employee only has a right not to be dismissed or disadvantaged. There is nothing forcing the employer to investigate this or make any changes.
However, employers should bear in mind that employees will have fears around raising such concerns and should not be dismissive of such concerns. Concerns can be raised in a variety of ways and not always in a calm and eloquent manner. Employers should take the time to hear concerns and ask questions where relevant in order to reassure disgruntled employees that their concerns are being taken seriously.
If employers are unsure about how to manager certain concerns or employees accused or raising the concerns, they should speak to lawyers to determine the best approach for moving forwards.
This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact?Valerie Bond?to discuss any issues you are facing.