Protected Disclosures? Why a café worker was awarded £22,000 by an employment tribunal

“From an employer’s standpoint, the key takeaway is the importance of recognising and responding appropriately to health and safety concerns.”

Early in 2023, a café worker was unfairly dismissed. The café that she worked for insisted that the café door needed to remain open at all times of the day and year to increase foot traffic. When the claimant insisted to close the door due to it being ‘too cold’, her employment was terminated.

Before termination, however, the respondent had denied a request made by the claimant to provide a heater in the workspace to compensate for the door being open.

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An improperly handled workplace conflict

During the disagreement between the claimant and the respondent regarding the heating of the area, the claimant had notified her employer that, according to Health & Safety standards, the temperature of 12 degrees was well below the requirement of 16 degrees, as set by the Health & Safety Executive (HSE).

This led to increased tension between the employee and employer. Shortly thereafter, the claimant alleged that her employer retaliated against her, confronting her about her lateness, even though other staff members frequently arrived late without facing any repercussions. It is important to note that her detriment stemmed from a Protected Disclosure – a disclosure that an employer cannot base dismissal or disciplinary procedures on – rather than a straightforward case of discrimination.

It was determined that the unfair treatment persisted when the claimant's working hours were significantly reduced, adversely affecting her earnings, under the pretext of a ‘lack of available shifts’. Investigations into the shift planners and rotas revealed that this justification was unfounded.

Termination of employment without a disciplinary hearing

Shortly before termination, the claimant was requested to attend a disciplinary meeting by the respondent to discuss the rapidly deteriorating working relationship. However, due to childcare responsibilities, the claimant was unable to attend the meeting at the stipulated time and place. It was at this point that the respondent terminated the claimants’ employment with immediate effect.

Tribunal findings: unfair dismissal

The judge presiding over the tribunal ruled:

1. The claimants’ notification to the respondent of an unhealthy working environment was a Protected Disclosure – a disclosure that an employer cannot base dismissal or disciplinary procedures on.
2. The claimants’ sparse lateness, given her co-workers were also routinely late, was an unfair reason for dismissal.
3. Relations had clearly, and unfairly, deteriorated after the claimant brought the unhealthy working conditions, the Protected Disclosure, to the employers’ attention – this was ruled to be the reason for dismissal, not the sparse lateness of the claimant.

Where the respondent went wrong: dismissal based on a Protected Disclosure  

“In this case, the judge found that the claimant made Protected Disclosures under s.43B Employment Rights Act 1996, regarding the minimum temperature in WhatsApp messages to her employer. It therefore serves as a useful reminder that employers should ensure that managers are trained to identify potential whistleblowing disclosures and escalate them appropriately.”

The primary error here was dismissing the claimant for making a Protected Disclosure about substandard workplace temperatures, violating the Employment Rights Act 1996. Secondary failures included ignoring HSE temperature requirements and retaliating against the claimant through discrimination and reduced hours.

This case clearly underscores the importance of robust whistleblowing and Health and Safety policies to ensure compliance, prevent retaliation, and mitigate legal risks. With UK whistleblowing laws evolving and tribunal scrutiny increasing, employers must prioritise training, policy development, and proactive responses to employee concerns to avoid costly penalties and reputational harm.

Croner can provide both Health and Safety and Employment Law support. For same-day assistance, give us a call on 0808 501 6651.