Mr N Best v C Retail Limited — 2019

Mr N Best worked for C Retail Limited as a fixed-term seasonal sales assistant in the stockroom at the Westfield store. After a flood on 4 December 2018 and the store's reopening on 6 December, he raised concerns in a WhatsApp group about the wet carpet and possible risk to people with respiratory issues. On 8 December he said he was not happy to work in those conditions and would need to be placed elsewhere, but he did not notify the store manager of his absence and later declined to return until he had written confirmation that the store was safe.

The tribunal held that only Disclosure 1 in the WhatsApp exchanges was a protected disclosure. Disclosures 2, 3, 5 and 6 were not qualifying disclosures, and there was insufficient evidence for Disclosure 4. The amended whistleblowing and health and safety claims, presented on 8 November 2019, were out of time because the last date for presentation was 4 April 2019 and it was not reasonably practicable to present them earlier.

On the merits, the tribunal found that Mr Best did not have a reasonable belief that there was a serious and imminent danger in the stockroom for the purposes of sections 44 and 100 ERA 1996. It rejected most of the alleged detriments as normal management action or factually justified. It did find that describing him as aggressive and later characterising him as unreliable and not suitable for reinstatement amounted to detriments, but not detriments caused by any protected disclosure or health and safety issue. The tribunal found that the dismissal was for unauthorised absence and failure to follow absence reporting requirements, not because of any disclosure or health and safety concern, so the automatic unfair dismissal claims failed. No monetary award was made.