Ms C Hughes v MacArthys Laboratories Limited T/A Martindale Pharma — 2020

Ms Hughes worked as a production operator for MacArthys Laboratories at the Romford site. The dispute arose after she injured her elbow at work in September 2018 and, on 14 October 2018, refused to work on the Brevetti 1 machine in the way she had been instructed because she said it raised health and safety concerns, including working above height, in a confined space, and with a painful elbow. She also repeated that complaint to HR on 16 October 2018. The tribunal accepted that those were disclosures made to her line manager and later to HR, but held that a text message sent to a colleague on 15 October 2018 did not itself amount to a protected disclosure.

The tribunal found that the 14 October conversation and the 16 October email were protected disclosures under the whistleblowing legislation because Ms Hughes genuinely and reasonably believed her health and safety might be endangered and the matter was in the public interest. It rejected the 15 October text as a protected disclosure because it was more a complaint about how she had been treated and did not contain information tending to show a health and safety risk. On liability for detriment, the tribunal held that Ms Bowden's decision to remove Ms Hughes permanently from the Brevetti 1 machine was caused by the disclosure and was a detriment, and that the later decision to start disciplinary proceedings was also a detriment for which the Respondent had not shown the protected disclosure played no part.

The disciplinary process that followed involved complaints about the locker room incident on 22 September 2018, an incident at the gatehouse/car park on 14 October 2018, and allegations from colleagues about Ms Hughes' behaviour. The tribunal criticised the procedure because Ms Hughes was not told that the locker room incident would be revisited, was not given a summary of the investigation, was not told which documents were relied on, and was not given a fair opportunity to meet all of the allegations. The disciplinary hearing took place on 16 November 2018, Ms Hughes was dismissed for gross misconduct by letter dated 20 November 2018, and her appeal was later rejected on 17 January 2019. However, the tribunal found that those procedural failures were not caused by the protected disclosure. It also found that the gross misconduct finding itself was based on the misconduct allegations before Ms Jarvis and Mr Fairlamb, not on the whistleblowing disclosures.

The claim of automatic unfair dismissal under section 103A ERA 1996 failed because the tribunal found that the principal reason for dismissal was misconduct, not the protected disclosure. The tribunal accepted that the Respondent believed Ms Hughes had engaged in misconduct, including aggressive conduct in the locker room, the alleged comment about guns, and shouting at a colleague in the car park or gatehouse, and that those matters could amount to gross misconduct. It nevertheless held that the dismissal was procedurally unfair because the Respondent did not identify clearly, at the time of dismissal, which allegations were proved, which were treated as gross misconduct, and why summary dismissal was justified.