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Pandemic related protected disclosures claims

The first Employment Tribunal decision in a pandemic-related protected disclosures claim has just been issued. Debra Gers looks at the lessons for employers from the ruling.

It is no surprise that many pandemic-related Employment Tribunal claims have been brought over the past 18 months. We have now had the first decision relating to a claim for detriment for raising protected disclosures (whistleblowing) in the case ofLough v Taaks of Scotland Ltd and another.

Background

The first respondent furloughed the claimant (and her colleagues) and had not obtained her agreement to this variation of her contract or to the reduction of her pay to 80% during furlough.

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On 11 August 2020, staff complained to the second respondent, who was the CEO and founder of the company, raising concerns about:

  • Failing to comply with the Scottish Government guidelines in relation to COVID-19
  • Requiring them to work while claiming furlough funds
  • Failing to take any steps to provide a safe working environment for the claimant, a disabled person within the meaning of the Equality Act 2010 (she was having treatment for cancer)

The second respondent did not react well to the concerns being raised and did not accept that he had done anything wrong.

The claimant was subsequently dismissed and she brought numerous claims. The claims were for unlawful deductions from wages, breach of contract, failure to pay notice pay and accrued holiday pay and for not being provided with a statement of terms and conditions of employment.

She also claimed that she had suffered a detriment for making protected disclosures (section 47B Employment Rights Act 1996 “ERA” ) and suffered a detriment for health and safety reasons (section 44 ERA) and been dismissed for raising health and safety concerns with her employer (section 100(1)(c) ERA) and/or for making a protected disclosure (section 103A ERA). The disclosures were allegations that a criminal offence had been committed and that the respondent had failed and was likely to fail to comply with a legal obligation in that no steps were being taken to protect the health and safety of the staff in relation to the transmission of COVID-19.

Neither respondent put in a defence to the claims or appeared at the hearing.

Employment Tribunal decision

The Employment Tribunal found that:

  • The first respondent made unlawful deductions from the claimant’s wages of £1,327.34 by paying her 80% of her normal wages while she was furloughed without her consent and without her agreeing to a reduction in her pay. They were ordered to pay the claimant this sum.
  • The first respondent had also failed to pay the notice pay or accrued holiday pay on termination of employment or to provide the written statement and an award was made for these.
  • The second respondent took the decision to dismiss the claimant because of her protected disclosures.
  • The first and second respondents subjected the claimant to detriments including that of dismissal on the ground of her making protected disclosures. They were ordered to pay the claimant, on a joint and several basis, compensation and injury to feelings (including interest to the calculation date) of £18,032.63. This included an award of injury to feelings in the middle Vento band of £12,500.
  • The claimant was awarded ongoing financial loss for 52 weeks.

Although she had found alternative employment this was at a lower salary, with no employer pension contributions and she also had additional travel costs.

Comment

There are two particular points of interest in the Employment Tribunal’s decision.

Awards for injury to feelings are intended to provide compensation unrelated to financial loss for the degree of hurt, humiliation or distress an employee may have suffered. In assessing the injury to feelings, the Employment Tribunal took into account the claimant’s health. It must have been reasonably foreseeable to the second respondent that failing to address her health and safety concerns that she was being put in a potentially life endangering situation by being required to work without any protective measures in place, and then advising her that she was “no longer suited to the company” when she complained about her treatment would have had a significant impact on her. In addition, the claimant had been concerned at being required to work when she believed that the first respondent may have been fraudulently claiming furlough funds. The impact on the claimant was exacerbated by her trying to find alternative employment during a pandemic.

Significantly, regarding liability, the Employment Tribunal found that it was the second respondent who took the decision to dismiss the claimant and subjected her to the detriment of dismissal. The second respondent was a director of the first respondent. Accordingly, the Employment Tribunal found that the first respondent was vicariously liable for the second respondent’s action. The Employment Tribunal considered (and followed) the Court of Appeal judgment in Timis v Osipov. In that case, the Court of Appeal upheld the decisions of the Employment Tribunal and EAT that a whistleblower’s colleagues can be personally liable for dismissal-related detriments and losses flowing from the dismissal.

In Lough, the Employment Tribunal was satisfied that an award of losses for subjecting an employee to detriment for having made a protected disclosure, including arising from the detriment of dismissal, can be made against a co-worker. The second respondent and first respondent were therefore jointly and severally liable to the claimant for that element of the award as mentioned above.

For more information about how whistleblowing claims may arise during the pandemic see our earlier whistleblowing article here.

For details of other recent pandemic-related Employment Tribunal decisions, see our articles from our Spring Employment newsletter here and Summer 2021 Employment newsletter here.

Debra Gers is Senior Practice Support Lawyer in the Employment, Pensions, Benefits and Immigration group at Blake Morgan.

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