Unfairly dismissed for raising concerns about colleagues’ failure to follow Covid rules

Although we are now in a position where the last Covid restrictions are being eased, a recent case about a situation which arose during the earlier stages of the pandemic is a useful example of how Employment Tribunals approach whistleblowing issues (whether relating to Covid or otherwise).

The facts

Ms Best was a sales assistant at Embark on Raw, a retailer of pet food, and had joined the company in January 2019. In mid March 2020, as Covid began to loom, the company issued instructions to its staff regarding safety measures in the shop.

However, despite the company’s instructions, the Claimant was concerned that her colleagues were not abiding by the safety measures. She raised this with the company via an internal feedback form, and as a result, one of the owners/directors sent out a reminder to all staff about the importance of wearing masks and gloves and ensuring social distancing.

The Claimant then raised concerns again on 21 April, as she said that her colleagues were not following the rules and she was concerned that she would become ill. The owners/directors responded to say that they were doing the best they can and did not feel that any rules were being broken. They referred to the Claimant as “paranoid.”

Two days later on 23 April, one of the Claimant’s colleagues made a complaint about her, saying that they felt “harangued” by her and that she had bossed them around about wearing masks and socially distancing. The colleague said that they, and others, were thinking of leaving the company.

The next day, one of the owners/directors called the Claimant and told her that they felt she was causing a divide within the business. She was told she was being given a verbal warning, but it was not clear what the warning was for, and no disciplinary hearing took place.

The Claimant then had some time off sick with Covid symptoms and then with stress/anxiety. On the day she was due back to work (12 May) she was dismissed. She was given a right of appeal, but the appeal was unsuccessful.

The Employment Tribunal’s decision

The Tribunal found that the Claimant’s complaints had been dismissed without having been properly investigated, yet the complaint from her colleague had been accepted (again, without proper investigation). They concluded that the verbal warning she had been given had been issued without a proper disciplinary process.

In the Tribunal’s view, the Claimant had been subjected to a detriment and dismissed for having raised protected disclosures (i.e. whistleblowing) and for the breakdown in working relationships caused by her whistleblowing. (She also succeeded in claims for harassment on the grounds of her age and sex, and for victimisation).

A copy of the Employment Tribunal’s judgment can be found here. They also made a separate decision on compensation and although the Claimant did not receive any compensation for loss of earnings (largely because she started what seems to have been a successful business after her dismissal) she was awarded a total of just over £20,000, most of which was for injury to feelings.

What lessons can employers learn from this case?

If the employer had investigated both employees’ concerns properly (i.e. those raised by the Claimant about Covid, and by the  colleague about the Claimant) then it would have been in a much better position to defend the claim. The Employment Tribunal was also very critical of the employer’s failure to follow the ACAS Code when disciplining and later dismissing the Claimant.

The issue of whistleblowers being ostracised by their colleagues is often a tricky one to manage. There are some key points that it is helpful for employers to bear in mind. Firstly, even if an employee’s concerns are justified that does not mean their colleagues will appreciate them being raised. That is where the employer’s communication with all parties will be key. Secondly, even if an employee’s concerns are mistaken, that does not mean that they won’t qualify for protection as a whistleblower. The protection applies to those who genuinely believe they are raising matters in the public interest, which certainly was the case here.

The team at Pure Employment Law have many years of experience at dealing with tricky whistleblowing cases and can help you minimise the risk of issues turning into expensive claims.