Mr S Moore v Casa El Pastor Ltd — 2021

The claimant was employed as restaurant manager and, during the Covid-19 period, repeatedly raised concerns that chefs were not wearing face masks. The tribunal found that he made protected disclosures and also carried out designated health and safety activities when he tried to secure compliance. It found that Mr Kumain reacted with hostility, that the claimant was given inadequate support by managers, and that the incidents on 31 October to 4 November 2020, the exclusion from work during the second lockdown, and the 9 December 2020 confrontation with Abdel all contributed to a breakdown in trust and confidence.

The tribunal found that the claimant was constructively dismissed when he resigned by email on 13 May 2021, with notice expiring on 26 June 2021. It held that the respondent's conduct, taken cumulatively, breached the implied term of mutual trust and confidence, and that the final straw was Ms Jones's failure during the 10 May 2021 discussion to give the reassurance the claimant sought about the respondent's duty of care. The dismissal was held to be automatically unfair because the principal reason for dismissal was the claimant's protected disclosures. The tribunal also held that the detriment complaints were in time, either as part of the same series of acts or because it was not reasonably practicable to present them earlier.

The tribunal upheld the whistleblowing detriment claim in part and the health and safety detriment claim in part. It found that Mr Kumain's conduct in late October and early November 2020, the claimant's exclusion from work during the second lockdown, Abdel's threat on 9 December 2020, the refusal of a pay rise on 19 April 2021, and the later misleading recollection by Ms Jones were on the relevant protected grounds, but that some allegations, including Mr Bown's 7 October 2020 failure to intervene and Ms Jones's initial informal handling of the 13 November 2020 meeting, were not. The discrimination arising from disability claim failed because, on the material date of 19 April 2021, the claimant had not shown that depression met the statutory definition of disability and the respondent did not have actual or constructive knowledge of disability. A remedy hearing was to be listed, and no monetary award was assessed in this judgment.