Mrs P Fardell v War World Limited — 2021

Mrs Fardell was employed by War World Limited as a part-time Production Operative from 29 January 2019 until she was summarily dismissed by telephone on 31 March 2020. She brought claims relating to the absence of a written statement of employment particulars, automatic unfair dismissal under s.100(1)(c) ERA 1996, and automatic unfair dismissal under s.103A ERA 1996. The tribunal found that the Respondent had not provided a compliant written statement under s.1 ERA 1996, but that claim could not succeed because s.38 Employment Act 2002 only gives a remedy where a linked Schedule 5 claim succeeds.

On the health and safety and whistleblowing issues, the tribunal considered a series of communications in March 2020. It found that the 12:37 text sent on 22 March 2020 to Simon Lloyd about WHO social-distancing advice and health risk was a protected disclosure for s.100 purposes, but not a protected disclosure under s.103A because it was not sufficiently factual and specific. The 24 March 2020 Facebook messages to Ms Mohammadi-Jouzdani, including comments that 2-metre distancing could not be adhered to, that there was a breach of health and safety law, and that staff were not stepping back, were found to satisfy both s.100 and s.103A. The tribunal did not treat the 23 March car-park discussion, the 30 March emails, or the 31 March calls as protected disclosures.

The tribunal applied the Kuzel approach to the reason for dismissal and accepted that Mr Ross made the decision to dismiss. It found that the dismissal was not because of the protected disclosures, but because of the Claimant's approach to continuing work during the pandemic, her view that the business should close or she should be furloughed, her repeated requests for the risk assessment, her unwillingness to attend site as proposed, and the way the 31 March 2020 call with Ms Mohammadi-Jouzdani unfolded as perceived by Mr Ross. The tribunal therefore dismissed both automatic unfair dismissal claims. It also noted that if the Claimant had had sufficient service to bring an ordinary unfair dismissal claim, the Respondent was likely to have lost on reasonableness and procedural fairness. In a later costs application, the tribunal found the refusal of a £4,000 settlement offer to be unreasonable, but declined to make a costs order because of the Claimant's limited means and the fact that her case had some merit.