Ms R Mellor of Counsel For the v Respondent — 2021

The claimant, a pharmacist employed from 3 February 2020 to 31 July 2020, alleged that she was dismissed because she had made protected disclosures about Covid antibody testing at the York branch. The tribunal accepted that there were no formal probation review meetings before 1 July 2020 and rejected the respondent’s case that the probationary period had been extended by agreement. It also found the stated performance reasons for dismissal were not supported by the contemporaneous record.

The tribunal held that the claimant’s discussion with the second respondent on 18 June 2020 about the proposed antibody testing in the consulting room amounted to a protected disclosure under s.43B ERA 1996, applying the approach in Kilraine. It accepted that she reasonably believed the arrangements posed a health and safety risk to staff and the public. Although her later confrontation with Mr Razwan on 29 June 2020 was not itself a protected disclosure because it was not made to the employer, the tribunal found that the disclosure to the second respondent was a reason, and the principal reason, for dismissal. The automatic unfair dismissal claim therefore succeeded under s.103A ERA 1996.

The whistleblowing detriment complaint failed on limitation grounds. The detriment relied on was the requirement to attend the probationary review meeting on 1 July 2020, and the tribunal held that ACAS early conciliation should have begun by 30 September 2020. Because it began on 1 October 2020, the claim was out of time under s.48(3) ERA 1996 and the tribunal was not satisfied that it had not been reasonably practicable to start in time.

The unlawful deduction from wages claim succeeded. The tribunal accepted that the claimant was required to work additional hours during the Covid period, that overtime was to be paid at standard rate under the contract, and that the registered pharmacist log was the best record of the hours worked. It found that the claimant had not been paid for the additional hours and had not received TOIL. The indirect sex discrimination claim under s.19 Equality Act 2010 failed because, although the PCP of additional hours disadvantaged women with childcare responsibilities, the tribunal held that the respondent had shown justification in the exceptional circumstances of the pandemic and that no formal request for reduced hours or locum cover had been made. No remedy figures were set out in this reserved liability judgment.