In a recent Employment Tribunal case (Ms. J. Pelling v. The Complete Care Group Ltd) the Employment Tribunal has given its judgment, that even though Ms Pelling was a whistle-blower, that was not the reason for her being dismissed, and so her claim for unfair dismissal failed. 

Ms Pelling worked as a Community Development worker for the respondent care provider. She alleged that her manager had used a lighter to frighten a resident in the care home to move him along and that a sock was stuffed into the mouth of a resident to stop him from shouting. The Tribunal found that Ms Pelling was a whistle-blower (i.e. that she had made ‘protected disclosures’). Ms Pelling raised these issues at a meeting to discuss a shift she had missed and was dismissed the following day. Ms Pelling had only been employed for around three months by that point.

The judge concluded that: The fact that the dismissal was in time proximate to the protected disclosures being made is not in itself sufficient to conclude that the disclosures led to the dismissal. 

She concluded that the reason for the Claimant’s dismissal was the fact that the Claimant had failed to turn up for a shift and that the Respondent operated a practice whereby anyone who missed a shift was noted down as if they had walked out on a shift. 

So what would I highlight from this case? 

1. Employees and workers do not have to have 2 years’ service to be able to complain that their contract was terminated due to them having blown the whistle (which is a requirement in most other claims relating to dismissal). The employer in this case chose not to follow their full internal process which the tribunal put down to Ms Pelling’s length of service, but in most cases, there is some benefit to be had in still following your internal process in order to demonstrate that you have carefully considered the circumstances, and can evidence the genuine reason for dismissal.  
2. The legal test for dismissal claims involving whistleblowing for employees and workers is slightly different. Employees have to demonstrate that their whistleblowing was the ‘main or principal reason’ for their dismissal, whereas workers only have to demonstrate that it was a more than minor or trivial cause. With this lower threshold for workers, it is again worth making sure you document and follow a fair process to avoid being potentially caught out.
3. As the Judge explained, the fact of the dismissal being the day after the protected disclosures were made was not the relevant issue, the issue was in terms of establishing the cause or causes of the dismissal. In some cases it is alleged that the very short space of time between someone blowing the whistle and them being dismissed is an indication that there must be a link between the two – clearly, this should not be presumed. 
4. Clearly, non-attendance for work is a serious matter, but where the employee does have two years’ service, claims of unfair dismissal could arise where an employee is dismissed without any warning and where they are citing problems with their manager as the reason for not attending (as was the case here). The Judge in this case referred to the staffing issues that are well known to affect the social care sector as explaining why at least in this case, non-attendance was such a serious issue and went some way to explaining the employer’s tough stance on non-attendance. The case however does not pave the way for dismissals for non-attendance for a single shift!
5. As the employer did here, steps were taken to address and look into the complaints made. The Tribunal said that: the Tribunal concludes from the minutes of the meeting with the claimant that Mrs McWall [one of the directors] was genuinely grateful to the claimant for highlighting the issues, referring to her as brave, and was requesting further information from her. It seems unlikely that a person would ask for further information if their main intention was to dismiss them because they had raised those very issues. Clearly, if someone is raising issues as serious as those that Ms Pelling did, it is of course imperative that you look into these, irrespective of whether the person raising the issues is to be dismissed for other reasons.
6. Often an issue that you want to address with an employee might arise some time before you are able to deal with it or speak to the employee about it. Between then and actually dealing with this issue, the employee may blow the whistle. Whilst not found in this case, there can be tactical reasons why employees might raise complaints once they have been advised that the employer wishes to discuss an issue with them. Being able to evidence and document the point from when an issue arises is helpful in being able to disconnect that issue from any subsequent protected disclosure.
7. Also, a complaint only amounts to whistle-blowing where the employee or worker makes the complaint ‘in the public interest’. If the complaint is very clearly made in the employee’s own interest as a means of deflecting any sanction that they anticipate they might receive, then there is an argument that the individual will not be a whistle-blower. Case law sets out that something can however be both in the public interest and the worker's personal interest, so do not assume that someone will not be a whistle-blower just because of the context in which the complaint is made.

For all aspects of dealing with internal complaints and defending claims in the employment tribunal, please contact Jackie Morris.