Mr T Rajtmar v Uneek Clothing Company Limited — 2021

Mr T Rajtmar worked for Uneek Clothing Company Limited as a warehouse operative and forklift truck driver from 26 November 2018. The Tribunal found Mr Rajtmar and Mr Minas to be credible witnesses, preferred their account over the written statement of Mr Terry Lehaj, and noted that Mr Lehaj did not attend for cross-examination. It also took account of the absence of some disclosed CCTV and email material. The Tribunal accepted that the Claimant raised concerns on 10 January 2020 about an overloaded pallet that fell from about 9 metres, on 16 January 2020 about another overloaded pallet, and on 17 January 2020 about a further pallet which he photographed before showing the photographs to the health and safety officer, Mr Amer.

On the wage and contract claims, the Tribunal found that the Claimant was suspended from 17 January 2020 until his dismissal on 22 January 2020 and was not paid for that period. Paragraph 15.2 of the employee handbook provided that suspension would be on full pay, so the non-payment was an unlawful deduction from wages. The Tribunal also found that the dismissal was a breach of contract and that the Claimant was entitled to four weeks' notice pay under paragraph 8.2 of the contract. It rejected the Respondent's case that he was in breach because he possessed a mobile phone, finding that he used the phone only to take photographs and did not speak or send texts.

On the whistleblowing issues, the Tribunal held that the reports on 10, 16 and 17 January 2020 were qualifying disclosures about health and safety risks under sections 43A and 43B(d) ERA 1996, made in the public interest and to the employer. It found that the risk concerned pallets weighing over 500 kilogrammes falling from heights of up to 9 metres, that taking photographs on 17 January 2020 was an appropriate step in circumstances of danger, and that the Respondent had not proved that suspension or dismissal were because of mobile-phone use. The Tribunal therefore upheld the detriment claim under sections 44 and 47B ERA 1996 and the automatic unfair dismissal claim under section 103A ERA 1996. It had set out the authorities on disclosure and burden of proof, including Cavendish Munroe, Kilraine, Chesterton Global, and Smith v Hayle Town Council. No remedy was quantified in this judgment, and the case was listed for a one-day remedy hearing.