Pet shop assistant was unfairly dismissed for whistleblowing on Covid measures, tribunal rules

Judge finds employer did not conduct proper investigation after claimant reported colleagues failing to wear masks or socially distance

A pet shop worker was unfairly dismissed after she made protected disclosures about colleagues not following Covid measures, a tribunal has ruled.

Leigh Best, a sales assistant at Embark on Raw, a pet food retailer, made numerous complaints about adherence to Covid precautions at work but was identified by colleagues as a source of ‘alienation’ instead.

The East London employment tribunal also ruled that Best had been subjected to detriments because she made complaints, and a claim of harassment related to her age and sex also succeeded.

Best was employed on a zero-hours contract at Essex-based Embark on Raw from 29 January 2019. The business was owned and directed by husband and wife David and Andrea Fletcher. Around the start of the pandemic, on 14 March 2020, Embark on Raw gave instructions to staff about Covid-secure measures in the shop. 

However, the tribunal heard that Best was “extremely worried” that neither management nor staff were “consistently following the rules”, sharing concerns that her colleagues were not wearing a face covering and failing to follow social distancing.

After she shared her concerns in a feedback form, David Fletcher sent out a reminder about the importance of social distancing and the wearing of masks and gloves. Andrea Fletcher told the tribunal there were regular telephone and text message conversations about the measures.

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On or around 21 April, Best expressed her concern to the Fletchers that her colleagues were not following measures and said that, if she became ill, it would only be because she was exposed at work. 

Responding by text message, the Fletchers asked her to be “realistic and not paranoid” and suggested to Best 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”.

The tribunal found that there was no documented investigation of Best’s allegations and that no steps were taken to interview other employees or speak to them to find out if her anxieties were justified.

However, on 23 April, another employee, Kate Footer, complained to Andrea Fletcher on the phone that she had been treated badly by Best, and the tribunal found that the Fletchers entirely believed Footer’s complaint. 

Footer said Best “persistently and volubly harangued” her and her colleagues and “bossed” them around about their alleged failures to wear masks and socially distance. She added that she and other employees would not tolerate this from Best and that some or all of them were considering leaving the company.

Andrea Fletcher asked Best to call her the following day and, at the start of the conversation, said: “We feel you have created a bit of a divide in the business, in your words and your actions to other people”. Best told Fletcher she was having a “meltdown” about the pandemic and described herself as “petrified”.

Fletcher issued Best a verbal warning, which was not confirmed in writing or any cumulative disciplinary record, nor was it clear what the warning was for, the tribunal found. 

The tribunal also heard that Best was not given any prior warning that the meeting might potentially result in disciplinary action, and she had no idea in advance of the disciplinary case she had to answer. 

After hearing his wife’s account of the conversation phone meeting, the tribunal heard David Fletcher “made up his mind” and told Andrea Fletcher: “it’s time to let [Best] go now… [the other staff] can’t work with her and I can’t work with her”.

The tribunal heard from David Fletcher that he considered no other alternatives because he said “three staff would walk out and then I would not have a business”.

Between 24 April and 11 May, Best was absent for two weeks, first with Covid symptoms and then with certified stress-related illness and anxiety. She was due to return to work on 12 May. 

However, on the day she was due to return to work, in a meeting with the Fletchers that Best herself had requested, she was dismissed. The Fletchers told her: “moving forward I just don’t think it’s going to work”.

The tribunal found that the meeting was not compliant with the Acas Code on Disciplinary and Grievance Procedures, and that Best was not properly invited to a disciplinary meeting, had no notice of disciplinary allegations made against her and no opportunity to prepare a response. 

A disciplinary appeal was held on 20 May which upheld the original decision to dismiss.

The tribunal found that the principal reason for Best’s dismissal was that she made protected disclosures. One of the consequences of those disclosures was the complaint from her colleagues, which the Fletchers accepted “without intervention, with no proper investigation” and so dismissed her to preserve its residual workforce.

By not investigating employee complaints or the previous actions of other employees, the tribunal also said that the company imposed detriment and, eventually, dismissed Best as a direct result of her protected disclosures and the breakdown in working relationships that was caused by complaints that resulted from her disclosures.

Beverley Sunderland, managing director at Crossland Employment Solicitors, said that this case was a reminder to employers that there are “legal tests” for whistleblowing, and warned that, too often, businesses try to show they have done nothing wrong and argue that an employee cannot bring a claim of whistleblowing. 

However, she said the question firms need to ask is whether the employee has a reasonable belief that an employer is not complying with the law or their own policies, and whether this is in the public interest.

“Although dismissal may be tempting for an employee who has not 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,” she told People Management. 

With employees returning to the office, she advised that managers sit down with employees, ask them to bring particular incidents to management’s attention and reiterate to staff about the importance of complying with rules and the sanctions for not doing so.

Embark on Raw has been contacted for comment. Best could not be reached.

A one-day remedy hearing is listed for 31 January 2022.