Automated Summary
Key Facts
The case involves Mr. S Harper, employed as a warehouse and production manager by KBF Enterprises Limited from 2011 until his resignation on 16 December 2015. The claimant made protected disclosures regarding the company's request to relabel fish oil products with expired 'best before' dates, believing this was potentially misleading to customers and posed a health risk. After the claimant refused to comply with this request, Kieran Fisher (the Managing Director) became angry and threatened him, leading to a series of events including the claimant's grievance and eventual resignation. The Employment Tribunal found that the claimant was constructively and unfairly dismissed by the second respondent, but the dismissal was not automatically unfair under section 103A of the Employment Rights Act 1996. The claimant's claims of protected disclosure detriment against both respondents were dismissed, while his claim of breach of contract against the second respondent succeeded, entitling him to notice pay.
Issues
- The tribunal needed to assess whether the claimant's protected disclosure detriment claims were time-barred under section 48 of the Employment Rights Act 1996, specifically examining the dates of alleged detriments and whether the claims were presented within the required three-month time limit.
- The tribunal needed to determine whether the claimant's constructive dismissal was automatically unfair under section 103A of the Employment Rights Act 1996, specifically examining whether the protected disclosure was the reason or principal reason for the dismissal.
- The tribunal needed to determine whether the second respondent's conduct, including the unreasonable request to relabel expired fish oil products, the angry outburst, and the subsequent handling of the grievance process, constituted a fundamental breach of the implied term of trust and confidence, entitling the claimant to resign and claim constructive dismissal.
- The tribunal needed to determine whether the claimant made protected disclosures that qualified under section 43B of the Employment Rights Act 1996, specifically examining whether the disclosures related to health and safety concerns regarding fish oil products with 'best before' dates past their expiration.
- The tribunal needed to assess whether the claimant reasonably believed that making disclosures about fish oil products with expired 'best before' dates would endanger public health or mislead consumers, considering his research and the evidence about the products' condition.
Holdings
- The second respondent's counterclaim for breach of contract (for not giving proper notice) was dismissed.
- The claimant's breach of contract claim against the second respondent succeeded, entitling him to notice pay.
- The tribunal dismissed the claimant's claims of protected disclosure detriment against both respondents, finding they were not caused by the protected disclosures.
- The tribunal found the claimant was constructively and unfairly dismissed, but the dismissal was not automatically unfair under section 103A of the Employment Rights Act 1996.
- The claimant is entitled to a remedy for unfair dismissal. The parties must agree on the remedy or notify the tribunal by July 17, 2017, if a hearing is required.
Remedies
The tribunal provisionally assessed remedies including £1,458.48 notice pay, £1,900 basic award, £2,916.96 compensatory award for loss of earnings, and £350 for loss of statutory rights, totaling £3,266.96. The claimant was constructively dismissed, but the dismissal was not automatically unfair. The tribunal invited the parties to agree on the remedies without further judgment.
Monetary Damages
5166.96
Legal Principles
- The tribunal applied the principle that employers must maintain a relationship of trust and confidence with employees, as established in Woods v WM Car Services (Peterborough) Ltd [1981] IRLR 347. The tribunal found that the respondents' conduct, particularly the manner in which they handled the claimant's grievances and the treatment following the protected disclosure, destroyed this relationship of trust and confidence, constituting a fundamental breach of contract.
- The tribunal applied the principle that the test for automatic unfair dismissal under section 103A of the Employment Rights Act 1996 is stricter than for detriment claims, requiring that the whistleblowing be 'the reason (or, if more than one, the principal reason) for the dismissal'. The tribunal found that the whistleblowing was not the principal reason for the dismissal, so the dismissal was unfair but not automatically unfair.
- The tribunal applied the principle that for protected disclosure detriment claims, the burden of proof shifts to the employer to show that the treatment was not on the ground of the protected disclosure, as established in Fecitt v NHS Manchester [2012] IRLR 64. The tribunal found that the respondents had discharged this burden for the detriment claims that were in time.
Precedent Name
- Vairea v Reed Business Information UK Ltd
- Fecitt v NHS Manchester
- Western Excavating (ECC) Limited v Sharp
- Kuzel v Roche Products
- Eiger Securities LLP v Korshunova
- London Borough of Waltham Forest v Omilaju
- Woods v WM Car Services (Peterborough) Ltd
Cited Statute
Employment Rights Act 1996
Judge Name
- Mrs P J Byrne
- Employment Judge Holmes
- Mr W Haydock
Passage Text
- The tribunal accordingly finds that the claimant's disclosures, which are admitted, do satisfy the test under section 43B of the Employment Rights Act 1996, and that he reasonably believed that to make them was in the public interest.
- The tribunal has considered carefully this issue. It is satisfied that the claimant's protected disclosures were not the reason, or the principal reason, for his constructive dismissal.
- Thus the tribunal was quite satisfied that there was, on the part of the second respondent in its actions and omissions between 21 October 2015 and 10 November 2015, a fundamental breach of the implied term of trust and confidence which entitled the claimant to resign and claim constructive dismissal.