Taking stock of whistleblowing

Ali v Indian Cuisine Ltd is a case which was about a hidden ingredient: Knorr chicken stock cubes, and the restructuring of a top Mayfair restaurant.

Ali v Indian Cuisine Ltd is a case which was about a hidden ingredient: Knorr chicken stock cubes; the restructuring of a top Mayfair restaurant; and its prized Michelin starred chef.

What happened?

Upon the discovery of the stock cubes being used by the top chef in what were described as vegan, vegetarian and halal dishes, Mr Ali, an Assistant Manager, unsurprisingly complained along with other staff members. Unfortunately, the chef’s reaction was that “guests don’t need to know what ingredients” go into his dishes.

Mr Ali was reported to be horrified by this attitude of failing to consider the impact on customers and exposing them to food that was potentially unsafe or against their religious and philosophical beliefs. He escalated his concerns.

In short, the Employment Tribunal found that senior management turned a blind eye to the chef’s conduct; the Director stated “those members of staff [i.e. those who had complained] needed to be phased out”. After all, having a Michelin star chef for the refurbished restaurant was very important to the company. The chef’s decisions and cooking were not to be interfered with.

Against this backdrop, the company had been undergoing a restructure. As part of that, the two assistant managers (including Mr Ali) were to be made redundant and replaced with two restaurant managers (with a more independent, senior role, with more responsibilities). This decision had been reached some time ago.

Subsequently, Mr Ali was told he was dismissed by reason of redundancy. The other assistant manager, who had also raised concerns about the stock, was also dismissed.

Mr Ali’s internal appeal on the grounds he was dismissed because he had blown the whistle was unsuccessful.

The Employment Tribunal Judgment

Mr Ali brought a claim of automatic unfair dismissal on the grounds that he had made a protected disclosure (whistle blowing complaint), amongst other claims.

For a complaint to qualify as a protected disclosure there must be:

  • A disclosure of information which must, in the reasonable belief of the worker making it, tend to show that one or more of the six specified types of malpractice/ failure(s) has taken place, is taking place or is likely to take place; and
  • The worker must have a reasonable belief the disclosure is in the public interest.

Ultimately, this is not a high threshold. The Employment Tribunal found in Mr Ali’s favour. It held that his dismissal had been accelerated by his whistleblowing complaint. It commented that Mr Ali had a reasonable belief that the disclosure was in the public interest and there was a relevant failure of a breach of legal obligations in relation to food, and healthy and safety, standards.

What award was made?

Whilst this case highlights that an employer’s failure to address performance/conduct issues in very senior members of staff can bite further down the line, it was not all bad news for the restaurant.

The Employment Tribunal held that, because the company would have dismissed Mr Ali for a genuine redundancy reason in any event, the compensatory award was limited to one month’s pay. In doing so, it applied what is commonly known as a “polkey reduction”. Where a Tribunal finds that a dismissal was procedurally unfair, and then goes on to consider remedy, it will take into account whether an award should be reduced by a percentage to take account of the likelihood that the employee would have been dismissed anyway, if a fair procedure had been followed.

In this case, it was determined it would have taken one month to correct numerous procedural errors which included:

  • The failure to inform Mr Ali he was “at risk of redundancy”. Instead, he was told he was redundant at the outset of the redundancy hearing;
  • The failure to take any notes of what was discussed at the hearing;
  • The failure to notify Mr Ali of his right to be accompanied;
  • The failure to make any attempt to consult with Mr Ali or suggest alternative employment for him or training for him to undertake a different role;
  • The failure to keep an open mind of the outcome of the appeal hearing. The appeal officer indicated at the start of the appeal hearing that the Company had already concluded that Mr Ali’s concerns were unfounded;
  • The failure to consult. The Tribunal found that Mr Ali was not given a true opportunity to set out his concerns and grounds of appeal before a decision was reached at the hearing which lasted for no more than five minutes; and
  • The failure to be independent. The Tribunal commented that the appeal officer was completely reliant on the support from the Human Resources assistant and was in a sense “just acting as a puppet in the meeting”.

Comment

This decision demonstrates that an Employment Tribunal will look behind an employer’s purported reasons for a decision to dismiss. Employers must draw a line between allowing a senior employee the freedom to conduct their work in a manner they see fit, in an effort not to hinder creativity, and legal obligations which are owed to their staff and the public.

Sophie Smith is a Solicitor in the Employment, Pensions and Immigration Team and is based in Leeds. If you have any questions, please do not hesitate to contact Sophie at sophie.smith@weightmans.com or speak to your usual Weightmans advisor.

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