Threatened with dismissal for raising legitimate health and safety concerns
Published 08 December 2022
When social distancing was advised and mask wearing encouraged shop worker Jill had good reason to want colleagues and customers to adhere to both.
Jill, considered a key worker, worked throughout the coronavirus pandemic.
She did so with the knowledge and risk that catching Covid could prove deadly for her disabled wife.
Jill’s spouse has a medical condition, which meant she was classified by the NHS as at high risk of serious illness if she caught the virus.
It meant Jill was particularly keen to do all she could to limit her risk of catching Covid at work.
However, shop management were unhappy with Jill’s approach in insisting colleagues and customers stick to the guidance aimed at limiting the spread of the virus.
Concerned Jill repeatedly complained to management about staff and customers not social distancing and wearing masks.
She did so verbally and via writing in emails to head office, but felt her concerns were ignored and treated dismissively.
Jill’s actions and conduct eventually led to her being the subject of a disciplinary investigation.
It was after staff and customers complained that Jill, who had worked at the store for 18 months, was ‘fanatical’, ‘aggravating’ and ‘confrontational’ in her approach.
She felt aggrieved when first informed of her suspension during the disciplinary process.
Jill was adamant her actions were reasonable, well intentioned and a result of genuine concerns for the health and safety of others. Her employer disagreed.
Allegations of harassment and intimidating behaviour towards colleagues and one of bringing the employer into disrepute, were levelled against Jill following the conclusion of the disciplinary investigation.
She was invited to attend a disciplinary hearing, and warned that dismissal was a potential outcome.
Jill, admittedly, as someone not afraid of speaking her mind was confident she could defend herself at the hearing.
This was despite the threat of dismissal and knowing she could not claim unfair dismissal if she was sacked, as she had less than two years’ service
The disciplinary hearing did not go to plan. Jill felt bullied and intimidated from the start. She was convinced the outcome was predetermined and she would be sacked.
It was a fractious meeting before Jill asked for it to be adjourned, so she could exercise her statutory right to be accompanied at a disciplinary hearing. The employer reluctantly agreed.
Jill contacted our Employee Support Centre for help, and discussed her case in details with our representative.
When the hearing did eventually reconvene, it did not take long for our representative to agree with Jill’s belief the outcome seemed predetermined.
He used all of his expertise and experience to calm and take control of the situation before presenting Jill’s case.
Our representative in a comprehensive argument that forcefully asserted Jill should be cleared of any wrongdoing, cited two key factors.
Firstly, she could be considered to have made genuine whistle-blowing disclosures. This was based on her raising legitimate concerns about a risk to the health and safety of staff and customers. Therefore, it was said any decision to discipline Jill would amount to unfavourable treatment for being a whistle-blower.
Secondly, the hearing was told that any sanction issued would amount to disability discrimination by association, as Jill’s actions directly related to her wife’s disability.
Our representative also highlighted the employer failing to act on concerns staff were not adhering to their Covid safety training and company guidelines. And in also not adhering to its duty of care when it was fully aware of the reason, why Jill was scared and struggling.
The concerns about Jill’s approach were acknowledged. Our representative said she had reflected and taken appropriate learning from what had been said by witnesses
The employer was urged to work with Jill and mediate with staff to address issues highlighted by the case, as it was the prudent and fair approach.
There was a lengthy discussion about what could be done moving forward and about what was expected from Jill.
The hearing was adjourned and later reconvened, and Jill cleared of any wrongdoing.