Tribunal Slams ‘Sham’ Dismissal in Whistleblowing Claim After Manager Raises Health & Safety Concerns

In Ms Joanna Radzinski-Kalisz v Central Window Systems Limited, a Quality Health and Safety Manager has won her whistleblowing claim. This comes after her superior disregarded her safety concerns before sacking her for raising them. The tribunal ruled that her disclosures qualified as whistleblowing, making her dismissal automatically unfair.

Below, we discuss what happened and how the tribunal determined that a qualifying disclosure had been made. We also discuss what counts as a qualifying disclosure, what doesn’t, and how others can bring similar claims.

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The Facts in Ms Joanna Radzinski-Kalisz v Central Window Systems Limited

Background to Whistleblowing Claim

Ms Joanna Radzinski-Kalisz (“the Claimant”) joined Central Window Systems Limited (“the Respondent”) as a Quality Health and Safety Manager on 21 June 2021. Throughout her employment, two main issues arose—alleged sexual harassment and health and safety concerns.

In terms of sexual harassment, the Claimant reported that Mr Kelly made inappropriate comments towards her, including one incident in June 2022. After she had a new hairstyle, he allegedly commented, “You look nice, no wonder I employed you.”

Regarding workplace safety and quality control, the Claimant highlighted several incidents in 2022 where her concerns were dismissed or undermined by Mr Kelly. These included safety issues related to a mezzanine floor, product defects like faulty hinges, and a lack of adherence to personal protective equipment (PPE) policies. For instance, when she sought to enforce PPE regulations by disciplining an employee for wearing high heels in a production area, Mr Kelly overruled her decision without any explanation, undermining her authority.

As tensions escalated, the Claimant raised concerns about Mr Kelly’s interference with other senior managers. Following advice from her partner, she also began secretly recording meetings to document her grievances.

Whistleblowing Claim Brought Following Dismissal

Things took a surprise turn when Mr Kelly discussed the Claimant’s alleged ‘performance issues’, while she was on holiday in August 2022. Upon her return, she found her email access had been restricted, and on 5 September, Mr Kelly dismissed her. He cited a “lack of progress” in her role and a “change in direction” for the company, with her dismissal taking effect on 30 September. He also provided a dismissal letter with minimal detail, stating that “it is not working out.”

​​Though the Claimant didn’t appeal the dismissal, she was dissatisfied with the handling of her concerns and the decision to terminate her employment. Consequently, on 25 October, she notified ACAS about the dispute, and by 22 December, she filed claims with an employment tribunal. She alleged automatic unfair dismissal for making a public interest disclosure (whistleblowing) and sexual harassment.

The Employment Tribunal’s Judgment

Following proceedings, the employment tribunal considered the automatic unfair dismissal claim linked to the Claimant’s protected disclosure. Since she lacked the two years of continuous service required for an ordinary unfair dismissal claim, she needed to prove that her dismissal was primarily due to whistleblowing.

Was the Claimant’s Disclosure a Qualifying Disclosure?

For the whistleblowing claim to succeed, the tribunal had to determine whether her disclosures met the legal test under UK whistleblowing laws. The Public Interest Disclosure Act 1998 (PIDA) protects employees who report wrongdoing in the workplace, provided their disclosure meets certain conditions.

The tribunal applied the test under section 43B of the Employment Rights Act 1996 (ERA 1996), which states that a disclosure qualifies if it:

  1. Contains information rather than merely expressing an opinion.
  2. Relates to one of the prescribed categories of wrongdoing, like a criminal offence, breach of a legal obligation, or health and safety dangers.
  3. The worker reasonably believes the information is true, and reporting it is in the public interest.

The Claimant argued she’d made several qualifying disclosures related to workplace health and safety. These included raising concerns about unsafe working conditions, breaches of PPE rules, and defective products. She also alleged that Mr Kelly’s interference with safety protocols posed risks to employees and customers.

The tribunal found that her disclosures did contain factual information rather than opinions. They also related to breaches of legal obligations and potential health and safety risks, which are protected categories under whistleblowing laws. However, the tribunal questioned whether all the disclosures met the public interest requirement.

The Public Interest Test

A key issue was whether the Claimant’s concerns were raised in the public interest. The law requires that a disclosure must not only affect the employee personally but also impact others, such as colleagues, customers, or the public.

The tribunal noted that the Claimant’s safety-related concerns could potentially affect employees and customers, particularly in relation to defective products and unsafe working conditions. This strengthened her argument that the disclosures met the public interest test.

However, the tribunal was less convinced that her concerns about Mr Kelly undermining her authority were in the public interest. While his actions may have affected her role, they didn’t necessarily pose wider risks to others. That being said, since the majority of the Claimant’s disclosures were found to be in the public interest, the tribunal then had to determine whether her qualifying disclosures led to her dismissal.

The Link Between Whistleblowing and Dismissal

Under section 103A of the ERA 1996, a dismissal is automatically unfair if the principal reason is that the employee made a protected disclosure. The Claimant argued that Mr Kelly had been hostile towards her since she raised concerns. She pointed to his dismissal of her safety recommendations, his overruling of her decisions, and the timing of her dismissal, which followed months of raising issues.

The Respondent, however, claimed her dismissal was due to performance issues and a change in company direction. Consequently, the tribunal examined whether this explanation was genuine or a pretext for retaliation.

After reviewing evidence, the tribunal found that at least one of the Claimant’s protected disclosures was a material factor in her dismissal. While other factors may have played a role, her whistleblowing was a significant reason for her termination. This meant her dismissal was automatically unfair under whistleblowing laws.

Sexual Harassment Claim

Alongside her whistleblowing claim, the Claimant alleged sexual harassment. She argued that Mr Kelly’s comments, such as his remark about her appearance, created a hostile working environment.

The tribunal acknowledged that Mr Kelly’s comments were inappropriate and unprofessional. However, it ultimately believed the evidence didn’t meet the legal threshold for harassment under the Equality Act 2010—and even if it did, the claim wasn’t brought in time. As a result, her sexual harassment claim was dismissed.

Understanding Whistleblowing and Protected Disclosures

What is a Qualifying Disclosure?

Under whistleblowing laws, a qualifying disclosure occurs when an employee reports wrongdoing in one of the following categories:

  • Criminal offences – such as fraud or bribery.
  • Breach of legal obligations – including breaches of health and safety laws.
  • Miscarriages of justice – for example, wrongful dismissals.
  • Danger to health and safety – such as exposing employees to hazardous working conditions.
  • Environmental damage – including illegal waste disposal or pollution.
  • Attempts to conceal wrongdoing – covering efforts to suppress or destroy evidence.

As mentioned, to be protected, the worker must reasonably believe their disclosure is true and that raising the issue is in the public interest.

What Doesn’t Count as Whistleblowing?

Not all workplace complaints are protected disclosures. The following don’t qualify:

  • Personal grievances – such as disputes over pay, workload, or promotion.
  • Complaints about workplace culture – unless they relate to unlawful behaviour.
  • Unproven suspicions – without any factual basis.

In this case, the tribunal found that the Claimant’s health and safety concerns qualified as protected disclosures, but her complaints about Mr Kelly undermining her authority did not.

How do I Make a Whistleblowing Claim?

How to Make a Disclosure

Employees should follow best practices when making a disclosure. It’s generally recommended to raise an issue internally first, typically with a manager or HR. If this is inappropriate, though, those affected should follow their company’s whistleblowing policy.

If neither of these work, employees could report to a prescribed person or regulatory body, such as the Health and Safety Executive. As a last resort, those affected could disclose to the media, but only if there are exceptionally serious failures. This last effort should be carefully considered, as inappropriately reporting to the media can cause whistleblowers to lose their protection.

Legal Protection for Whistleblowers

Employees who make a protected disclosure are shielded from:

  • Unfair dismissal – If an employee is fired for whistleblowing, the dismissal is automatically unfair, as seen in this case.
  • Workplace retaliation – Such as demotion, bullying, or being overlooked for promotions.

Employees can initiate employment tribunal proceedings if they face detriment or dismissal due to making a protected disclosure. If they succeed, they could be awarded financial compensation.

The Tribunal Process

To bring a whistleblowing claim, employees must first notify ACAS and attempt early conciliation. Should this fail to provide an adequate resolution, those affected could file an employment tribunal claim, providing they meet specific eligibility criteria and time limits. In this case, the Claimant notified ACAS before filing a tribunal claim, ultimately leading to a ruling in her favour for automatic unfair dismissal.

If you have any questions or want help with your case, contact Redmans Solicitors now. As employment law experts, we can provide specialist advice and guide you through the legal process, should you be eligible.

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