David Low, an Aberdeen student, joined a Pizza Hut franchise on the lowest rung of the ladder. He rose rapidly and became assistant store manager, almost doubling his pay and undergoing a full range of training including food safety. Suddenly he faced a pay cut, a demotion, and a transfer to Dunfermline, over 100 miles away. What enabled him to claim constructive dismissal despite not having been at the franchise for one year, let alone two?
Mr Low’s training sharpened his insight into food safety. He noticed numerous instances of hygiene rules not being followed. His complaints to the outlet’s manager about poor food handling and failure to throw away outdated stock were ignored. Having experienced his own episode of food poisoning from one of the outlet’s meals, he contacted the Pizza Hut franchise manager, pulling no punches. It led to an unannounced inspection of the outlet and a highly unfavourable report.
In breaking the news of the pay cut, demotion and transfer, the director of the franchisee Ultra Catering, who subsequently had to acknowledge his lack of “hands on” knowledge of the outlet, suggested that Mr Low’s concerns were untrue and deliberate sabotage, and part of a vendetta against the outlet manager.
This brings us to whistleblowing and to qualifying disclosures under s.43B Employment Rights Act 1996. To succeed in his tribunal claim, Mr Low faced the task of proving that he reasonably believed that he was making a relevant disclosure in the public interest.
There was little doubt that the information he passed on to the Pizza Hut franchise manager - food being defrosted in the oven, Use By dates changed, food poisoning, lack of repairs, and dough left out overnight – comprised a disclosure in relation to health and safety.
What about reasonable belief that the disclosure was in the public interest? The franchisee sought to attribute it solely to the vendetta. The tribunal disagreed, deciding that Mr Low’s poor opinion of the manager was secondary and that his concern for public safety was genuine.
In the context of disclosure to a “prescribed person”, did it make any difference that Mr Low relied on his disclosure to the Pizza Hut franchise manager, not to his employer? Evidently not. His prior complaints to the directors had plainly not been taken seriously. The franchisee was accountable to Pizza Hut. This disclosure was consistent with this accountability.
All that remained was to determine whether Mr Low had been unfairly constructively dismissed as a result of his disclosures. The franchisee’s claim that he had simply been “paused on their wages system”, having not transferred to Dunfermline, did not hold water. All the more so when it ran other local Pizza Hut outlets. Its wrongful actions were driven by the disclosures. It learned an expensive lesson to the tune of £11,270.14. That would have equated to a lot of pizza sales. If only the whistleblowing complaints had been treated seriously.
Are you facing a whistleblowing claim? Batting it aside may be unwise. A second opinion never will be. We can help. Contact David Cooper on 07450 350715 or via david@wolverhamptonemploymentlaw.co.uk .
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