Miss J Conway v Royal Talens UK Limited — 2022

Miss Conway started work as a Territory Manager on 15 April 2019 and had passed probation by October 2019. The tribunal found that during the COVID-19 furlough period she was put on fixed part-time furlough hours from 6 July 2020, but meetings and work were still being arranged around those hours, including her 14 July 2020 review, which was scheduled to run beyond her 4 pm finish time. When the review went past her furlough hours, the tribunal accepted that she told Mr Karia she would not work beyond those hours and that doing so while the respondent claimed furlough pay would be wrong. In that context, the tribunal held that she made a qualifying protected disclosure within s.43B ERA 1996.

The tribunal rejected Mr Karia's denial that meetings were being scheduled outside furlough hours and accepted the claimant's evidence that he became annoyed and angry when she raised the furlough issue. It found that the subsequent 'counselling letter' of 30 July 2020 was, in substance, a formal warning rather than a genuinely informal note, and that the 5 August 2020 investigation letter and the later dismissal letter were framed in a way that put heavy weight on the claimant's conduct during the review and on the audit spreadsheet issue. The tribunal found that the audit matter had been overstated as two separate tasks when it was one task, and that the claimant corrected the spreadsheet error once it was explained to her.

On causation, the tribunal concluded that the protected disclosure was the principal reason for dismissal for the purposes of s.103A ERA 1996. It accepted that there may have been some performance concerns, but found that the disclosure, and Mr Karia's reaction to being challenged about work outside furlough hours, drove the counselling letter, the investigation and the dismissal on 20 August 2020. The tribunal therefore held the dismissal to be automatically unfair. Remedy was not dealt with in this judgment and was reserved for a separate hearing.