Member W Canning Tribunal Member J Copland Mr John Brown v , Solicitor Sips Eco Panel Systems Limited — 2021

The claimants were production operatives who returned from furlough on 4 May 2020 after the respondent wrote setting out COVID-19 precautions for the factory. Each sent an email on 5 May 2020 saying that PPE, distancing and workstation cleaning were not being properly enforced, and each was dismissed by letter on 7 May 2020 after an internal investigation said the respondent had found repeated breaches of its rules.

The tribunal held that the emails did contain sufficient information to amount to disclosures for the purposes of section 43B ERA 1996, but it found that neither claimant had a reasonable belief, in the public interest, that the information tended to show a relevant failure. It accepted the respondent's evidence that the factory return was planned, that PPE, hand sanitiser and cleaning products had been put in place, and that the premises were large enough for distancing. It also found that the claimants did not raise concerns on 4 May 2020 and that their failure to do so was more consistent with a wish to remain on furlough, including childcare concerns, than with a genuine fear that the COVID measures were not being enforced.

On that basis the tribunal found there was no protected disclosure and therefore no automatic unfair dismissal under section 103A ERA 1996. Because each claimant lacked the necessary qualifying period of employment, the tribunal said they had no other basis of claim. It added that if it had found a protected disclosure, it appeared there would have been retaliation, but that was not the finding reached.