Case 3202006/2020 · Employment Tribunal

Ms Leigh Best v Embark on Raw Ltd. — 2022

Case reference: 3202006/2020
Decision date: 5 January 2022
Jurisdiction: England & Wales
Judge: Employment Judge B Elgot Members
Panel members: Mr R Blanco, Mr M L Wood

Indexed: 23 May 2026

Parties

2 named

Claimant

Ms Leigh Best

Respondent

Embark on Raw Ltd.

Key findings

Tribunal's reasoning

Ms Best worked as a sales assistant for Embark on Raw Ltd from 29 January 2019 until her dismissal on 11 May 2020. The tribunal found that, during March and April 2020, she made qualifying protected disclosures about COVID-19 health and safety matters at the shop, including isolation, hot water for hygiene, face coverings, and staff social distancing. It accepted that her disclosures were made in the public interest and with a reasonable belief that health and safety was being endangered.

On unfair dismissal, the tribunal held that the principal reason for dismissal was whistleblowing, not the conduct and professionalism concerns later relied on by the Respondent. It found that the Respondent accepted co-workers' complaints without proper investigation, issued an oral warning after the 24 April 2020 call, and moved to dismissal through a process that did not comply with the ACAS Code on Disciplinary and Grievance Procedures. Although the Claimant lacked two years' service for ordinary unfair dismissal, the tribunal found the dismissal automatically unfair under section 103A ERA 1996.

On the section 47B detriment claim, the tribunal found that several acts and omissions were done on the ground that Ms Best had made protected disclosures. These included the failure to give proper warning or information about disciplinary matters, the handling of the 11 May 2020 meeting, insufficient notice and information for the appeal, and the failure to provide evidence of the misconduct allegations. It did not accept every alleged detriment, and it found that one complaint about accompaniment at appeal lacked the necessary causal link, but the claim overall succeeded.

The tribunal also upheld harassment claims under section 26 Equality Act 2010 on the protected characteristics of sex and age. It found that Mr Fletcher's questioning about whether she was menopausal, after she had said she did not want to discuss it, was unwanted conduct related to sex. It also found age-related harassment in a later conversation about a newspaper article referring to prioritising younger and fitter people for ventilator treatment. Finally, it upheld victimisation under section 27 Equality Act 2010, finding that Ms Best's allegation on 24 April 2020 about the menopause remark was a protected act and that she was then treated less favourably, including being chastised and later dismissed in part because she had made that complaint. Remedy was not determined in this judgment and was listed for a separate hearing on 31 January 2022.

Claims and outcomes

5 findings recorded

Claim type	Issue or finding	Outcome	Protected characteristic	Award
Unfair dismissal	Automatic unfair dismissal under section 103A ERA 1996. The tribunal found the principal reason for dismissal on 11 May 2020 was that Ms Best made protected disclosures about COVID-19 health and safety concerns, not the conduct and professionalism reasons advanced by the Respondent. It noted that she lacked the two-year qualifying period for ordinary unfair dismissal, and that any remedy was to be determined at a later hearing.	Upheld	—	—
Whistleblowing	Claim under section 47B ERA 1996. The tribunal found detriments caused by the protected disclosures, including the failure to warn or explain matters properly, the handling of the 11 May disciplinary meeting, insufficient notice and information for the appeal, and the failure to provide evidence of the conduct allegations. It rejected some alleged detriments and found one communication issue about accompaniment at appeal was not causally linked to the disclosures.	Upheld	—	—
Harassment	Section 26 Equality Act 2010 claim. The tribunal found unwanted conduct related to sex when Mr Fletcher asked whether the Claimant was menopausal after she had indicated that she did not want to discuss it, and continued the topic. It held that this had the effect of violating her dignity and creating a humiliating environment at work.	Upheld	Sex	—
Harassment	Section 26 Equality Act 2010 claim. The tribunal found harassment related to age in a later conversation in which Mr Fletcher referred to an article suggesting younger and fitter people might be prioritised for ventilator treatment. The judgment records that incident as occurring on 31 March 2021, which is inconsistent with the rest of the chronology, so that date should be treated cautiously.

Legal tests applied

9 references

Official outcome judgment PDF

Gov.uk primary record

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