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31st January, 2022

Blowing the whistle on Covid-related activities

Man writing on notepad

A sales assistant has been found to have been unfairly dismissed after expressing concerns about her colleagues failing to follow Covid precautions.

Leigh Best brought claims of unfair dismissal, sex and age discrimination, victimisation, and whistleblowing detriment against her former employer, Embark on Raw. Due to a series of failings by her employer, who did not follow Acas Code on Disciplinary and Grievance Procedures during the dismissal process, Ms Best succeeded on all counts.

As with thousands of businesses in March 2020, Embark on Raw management team, Mr and Mrs Fletcher, rolled out measures to ensure Covid safety in their shop in Billericay, Essex. In the following weeks, Ms Best expressed concerns to Mr and Mrs Fletcher that the staff were not following the measures put in place, as they weren’t social distancing or wearing a face covering. In a text to Mrs Fletcher, Ms Best said “I’ve told [her husband] tonight if I get ill then I’ve only caught it from work”. Ms Best received a response asking her to be “realistic and not paranoid”, and no investigation was made of Ms Best’s complaints.

Two days after that conversation, another employee made a complaint about Ms Best, saying she had “persistently and volubly harangued” members of staff about social distancing. The employee also added that some or all of them were considering quitting. As a result of this complaint, Mrs Fletcher called Ms Best and issued a verbal warning. It was unclear what exactly the warning was for, and it was not confirmed in writing.

Mr Fletcher allegedly told his wife it was” time to let [Ms Best] go now”, as neither he nor his employees could work with her. The tribunal heard from him that following this he had no other choice because he said “staff would walk out and then I would not have a business”.

Ms Best was absent with sickness from the end of April to the middle of May, with Covid symptoms and stress-related illness and anxiety. She was due to return to work on 12 May, but in a meeting on her first day back, she was dismissed. She had not been invited to a disciplinary meeting, and she had no notice of the allegations made against her and no opportunity to reply or defend herself. Ms Best appealed the decision but her dismissal was upheld.

The tribunal found that the principal reason for Ms Best’s dismissal was that she made protected disclosures regarding her colleagues’ non-compliance with Covid guidelines. The complaint made against Ms Best was a direct consequence of the disclosures made which Mr and Mrs Fletcher accepted “with no proper investigation” and dismissed Ms Best to preserve its residual workforce. The tribunal ruled that Embark on Raw disciplined and dismissed Ms Best as a direct result of her blowing the whistle.

Whistleblowing Progress Points

  • As per the Employment Rights Act 1996, employees who “blow the whistle”, or as it’s legally known “make a protected disclosure”, cannot be treated unfairly or be dismissed. If an employee is dismissed as a result of whistleblowing, they will have cause for automatic unfair dismissal.
  • Protected disclosures generally relate to: criminal activity; non-compliance with legal obligations; health and safety violations; environment damage; or the deliberate concealment of any such matters. It is important that reports of non-compliance of Covid regulations are taken seriously.
  • Employers should make it clear employees are empowered to report any concerns; it is crucial to have in place a workplace whistleblowing policy and that it is communicated to employees, so they understand the process. This policy should also cover what happens if an employee is victimised as a result of blowing the whistle.
  • If any further advice is needed regarding whistleblowing policy, please get in touch with a member of the Employment Team

    Contact us for help and advice.

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