COVID-19 Whistleblower Succeeds in Automatic Unfair Dismissal Claim

During the COVID-19 pandemic, many employees have complained that social distancing and other precautions were not enforced with sufficient rigour in their workplaces. As an Employment Tribunal (ET) ruling in a whistleblowing case made plain, employers are obliged to treat such concerns with the utmost seriousness.

A sales assistant was extremely worried that rules in place to counter the pandemic were not being consistently followed in the shop where she worked. Amongst other things, she told her boss that he should be self-isolating after his daughter developed COVID-like symptoms. She expressed concerns that her health and safety and that of others was being endangered by the failure of other members of staff to consistently wear face masks and maintain social distancing. Following her dismissal, she launched a whistleblowing claim.

In its defence, the employer pointed out that it took proactive steps before the first lockdown to research and publish a comprehensive COVID safety policy. It asserted that the woman had become obsessive, paranoid and irrational in relation to safety precautions and that she was dismissed because of her rude and confrontational communications with co-workers and managers. She was alleged to have caused such an unpleasant atmosphere in the workplace that there was no choice but to dismiss her.

In upholding her claim, however, the ET found that, in expressing her concerns, she made disclosures in the public interest that qualified for protection under whistleblowing legislation. She made them in the reasonable belief that she was intervening to protect not only herself but others, including the shop’s customers. The employer’s persistent allegations that she was overreacting to the pandemic did not undermine the reasonableness of her belief that health and safety was being endangered.

The employer, the ET found, wanted to dismiss her as swiftly as possible following the disclosures, to which her colleagues objected and which the employer perceived as a threat to its business and reputation. The employer’s communications with her exhibited irritation and a tendency to blame her for paranoia. Her perception of risk was occasionally treated in a contemptuous manner.

Having been deprived of her employment because of her whistleblowing activities, her dismissal was automatically unfair. The protected disclosures had also resulted in her being subjected to other detriments and the ET identified serious flaws in the disciplinary process that preceded her dismissal. Her complaints of harassment and victimisation were also upheld. If not agreed, the amount of her compensation would be assessed at a further hearing.