Employees are protected from day one of employment and are
finding new ways of bringing claims against their employers
Employees with less than 12 months’ service can bring unfair dismissal
claims in the right circumstances, as well as discrimination claims. Reminders
of this are always useful – particularly when they point to new possibilities
for bringing claims.
Parkins v Sodexho, 2002, IRLR 109 is a case that stretches the net of the
Public Interest Disclosure Act wider than ever.
Parkins was dismissed after only three months service, according to his
employer, because he would not do as instructed. Parkins said the reason was
that he had complained (or disclosed) that his health and safety were put at
risk because he was not supervised when using a buffing machine in a
restaurant.
Employee protection
Under PIDA, a disclosure of information by an employee qualifies for
protection if the disclosure shows a criminal offence, non-compliance with a
legal obligation, a miscarriage of justice, the endangering of health and
safety, or damage to the environment.
Parkins might have brought himself within the protection of PIDA by claiming
that his disclosure of the lack of supervision showed his health and safety was
put in danger, but instead he claimed it showed a breach of his contract of
employment.
The tribunal found that PIDA did not apply to a disclosure of a breach of an
employment contract – the PIDA category of non-compliance with a legal
obligation was never intended to cover this.
But the EAT disagreed. An alleged breach of an employment contract did fall
within PIDA.
Employees already have protection for unfair dismissal from the start of
employment for dismissals due to certain breaches of employment obligations,
such as dismissals on defined health and safety grounds, for refusing to bend
the Working Time Regulations and for asserting a relevant statutory right.
The Parkins decision opens up this protection to dismissals because the
employee complained about a breach of any part of the employment contract.
Reasonable belief
Bringing a dismissal within the protection of PIDA not only allows unfair
dismissal claims from the start, it also makes a dismissal automatically unfair
and means there is no limit to the compensation that can be awarded.
Simply claiming the protection of PIDA is still a long way from making a successful
claim. The employee must show a reasonable belief in the non-compliance of
which he complained and must follow one of the specified methods of making the
disclosure.
Crucially, the tribunal must be convinced that the dismissal was prompted by
the disclosure and not some other reason.
Employer protection
There are steps that employers can take to protect themselves from claims.
The most obvious is to have an effective, well-publicised whistleblowing
procedure. It will then be hard for the employee to get the protection of PIDA
if he has not used it.
There should always be a hearing before a dismissal, even for employees with
less than 12 months’ service. This will allow the employee to raise any
allegation that the dismissal is on grounds that have special protection. The
company can then investigate further. If the employee does not raise the matter
at the internal hearing, the tribunal is far less likely to believe him when he
raises it for the first time in the tribunal application.
Second, tribunals can be influenced against employers that have dismissed
without following a fair procedure, even where there was no legal requirement
to do this because the employee had less than 12 months’ service.
Third, following a procedure before dismissing allows the company to set up
the evidence to show its real reason for the dismissal. The tribunal is more
likely to believe a company dismissed an employee for refusing to follow
instructions if it told the employee this was the reason at the time, instead
of raising it for the first time in its tribunal defence.
By Jill Kelly, a partner at Tunbridge Wells law firm Thomson Snell &
Passmore
