Tribunal watch: absence warnings, whistleblowing and redundancy
All four decisions turned on why the employer acted. Two employers showed the real reason was performance or a genuine redundancy. One gave a warning for disability-related absence the employee could not improve, and another penalised an employee for reporting suspected wrongdoing.
Sainsbury’s Supermarkets Ltd
The claimant, a disabled employee, was given a written disciplinary warning for disability-related absence, and the appeal was refused. The tribunal found both were discrimination arising from disability: the absence was genuine, the claimant could not have done more to improve attendance, and the employer did not show that a warning was a proportionate way to manage it. Claims of failure to make reasonable adjustments, harassment, victimisation, whistleblowing dismissal, unfair dismissal and holiday pay all failed, and the later capability dismissal was found fair. At a separate remedy hearing the tribunal awarded £10,385.37.
“The claims of discrimination arising from disability as provided for in s.15 Equality Act 2010 are well founded in respect of the written warning and the refusal of the appeal against the written warning.”
“the Respondent is ordered to pay to the Claimant the sum of £10,385.37”
For employers: Managing absence is a legitimate aim, but a disciplinary warning for genuine disability-related absence that the employee cannot improve needs real justification. Check whether a warning will actually help attendance before issuing one, and have the appeal manager weigh the disability.
Bakkavor Foods Ltd
The claimant was dismissed at the end of an extended probation period and said this was for whistleblowing, raising health and safety concerns and asserting a statutory right. The tribunal found that what the claimant said in a probation review about a workplace health and safety matter, raised while discussing absences, was not a protected disclosure, because a standard procedure already existed and was followed. A later appeal letter came after employment had ended, so it could not count. The employer had accessible safety reporting routes, and the dismissal was for performance concerns. All claims were dismissed.
“The complaint of automatically unfair dismissal for making protected disclosures is not well founded and is dismissed.”
For employers: Keep clear, contemporaneous notes of probation reviews and make safety reporting routes well known; the notes settled the dispute about what was said. Holding notice and holiday pay until an appeal ends did not move the date employment ended.
Milton Keynes City Council
The claimant, with less than two years of service, said a redundancy dismissal was really because of reports that works to a listed building owned by the council breached the consent granted. The tribunal found the reports were protected disclosures, and that a restructure removing a layer of management was a genuine redundancy situation. The claimant had not proved that the disclosures were the reason, or principal reason, for the dismissal or for selection for redundancy, so the claim of automatically unfair dismissal failed. The judgment was later confirmed on reconsideration.
“The complaint of unfair dismissal is not well-founded. The claimant was not unfairly dismissed.”
For employers: A protected disclosure does not stop a genuine redundancy, but the employer must be able to show the real reason. Here a dated business case, a month-long consultation and interviews scored against model answers did that.
Jimmit Ltd
The claimant reported CCTV footage that the claimant believed showed possible wrongdoing by a colleague at work. The tribunal found that the employer then changed the CCTV password, removed the claimant's access and accused the claimant of spying on colleagues, that the report was a protected disclosure and that both acts were detriments because of it. It awarded £4,000 for injury to feelings. Disability claims about shift patterns failed, because the tribunal found the claimant was given the shifts requested. The employer's argument that liability had passed to a new operator under TUPE failed because no transfer took place.
“The claim of detriment for making a protected disclosure succeeds and the respondent shall pay to the claimant the sum of FOUR THOUSAND POUNDS (£4,000) as compensation for injury to feelings.”
“the Tribunal considered it appropriate to make an award of £4,000”
For employers: When an employee reports suspected wrongdoing, look into the concern rather than the person who raised it. Withdrawing their access or accusing them of spying can be a detriment, even in a single incident.
Decisions can be reconsidered or appealed. We never publish the names of individuals. If a listing concerns you, or a decision has since been anonymised or removed, tell us and we will review it and remove it where appropriate. Contains public sector information licensed under the Open Government Licence v3.0. General information, not legal advice.