LF v OCS Food Co Ltd — 2024

The claimant worked at Bristol Court as an Assistant Chef from 16 December 2019 until her summary dismissal on 20 December 2022. The case concerned repeated staffing shortages, disputes about management support, a grievance in July/August 2022 that the respondent accepted was a protected disclosure, and an email sent on 11 November 2022 about the resident volunteer working in the kitchen. After that email, the claimant was suspended, investigated and dismissed for gross misconduct on the basis of an alleged GDPR breach and bringing the respondent into disrepute.

The tribunal rejected the claimant's direct discrimination claims under sex, race and age, and the related harassment claims. It found that some pleaded allegations were not proved on the facts, including remarks attributed to Danny Barnes and Ann Christie. Where the tribunal accepted underlying facts, such as the claimant being refused leave on one occasion, doing Chef Manager duties for periods without extra pay, and experiencing repeated staffing shortages, it found non-discriminatory explanations: rota clashes, the wider staffing difficulties facing the respondent, and recruitment decisions already directed towards other candidates. The tribunal therefore found no less favourable treatment, and no conduct related to sex, race or age, for the purposes of the harassment claims.

On whistleblowing, the tribunal held that the claimant's 11 November 2022 email was a qualifying and protected disclosure. It found that the email raised health and safety concerns in a kitchen serving vulnerable residents and staff, and that the claimant reasonably believed the disclosure was made in the public interest. The tribunal also accepted that the July/August 2022 grievance was a protected disclosure, but it found that neither disclosure was the reason, or principal reason, for dismissal.

The tribunal found that the reason for dismissal was the respondent's understanding that the claimant had breached GDPR by sending the 11 November email to external recipients and to her personal email address. It accepted that the dismissing officer and appeal officer genuinely believed misconduct had occurred, but held that their investigation was not reasonable because they did not identify the precise GDPR provision said to have been breached or the exact information said to be confidential. The tribunal also found that the respondent did not reasonably investigate the claimant's concerns about the resident volunteer or her account that she had repeatedly raised those concerns with management without effective action.

For ordinary unfair dismissal, the tribunal held that dismissal was outside the band of reasonable responses. It found that the respondent's sanction decision was based on an inadequate investigation and on conclusions that were not reasonably open to it, including the view that the claimant had chosen improper channels and could not be trusted not to repeat the conduct. The tribunal accepted some blameworthiness in the claimant's decision to send the email and applied a 5% reduction for contributory conduct under s.123(6) ERA 1996, but it made no Polkey reduction. The supplied text does not include a final quantified monetary award.