“Dessert Disaster”: blowing the whistle on health and safety concerns

A lot of employer and HR attention has focused, quite rightly, on plans to introduce day one unfair dismissal rights under the Employment Rights Bill 2025 (the “Bill”). Back in July 2025, the House of Lords amended the Bill stating that a 6-month continuous service period would be more palatable for employers; however, this interjection is unlikely to be accepted by the government, given that day one unfair dismissal rights are a manifesto pledge (although never say never!). Whilst we pause our discussion on the Bill and the impending Parliamentary “ping-pong” which will dominate Parliament’s Autumn return, let us discuss the law on unfair dismissal as it currently stands with employees having, in some specific cases, automatic unfair dismissal rights from the first day of their employment.

Automatic unfair dismissal: as it stands

Whilst ordinarily, an employee would need two-years’ continuous service before they can bring an unfair dismissal claim (as the law stands now), in some cases, where the employee’s dismissal is so wrong in law and contravenes their basic employment rights, employees have, in certain limited circumstances, day one automatic unfair dismissal rights. As these situations are limited and prescribed in law it is always best to take advice. For example, being dismissed for being pregnant, on maternity leave, or for a pregnancy-related illness is automatically unfair. Being dismissed after taking action to protect against serious and imminent danger or reporting unsafe working conditions is automatically unfair (subject to certain conditions). Being dismissed for asserting a statutory right is also automatically unfair. It is also automatic unfair dismissal to dismiss an employee for “blowing the whistle” on unsafe working practices (again, subject to certain conditions). Once the reason for the dismissal is accepted as being automatically unfair, the Employment Tribunal need go no further in assessing whether the dismissal was reasonable or consider any procedural issues.

In this article it is whistleblowing protection to which we focus our attention on and the case of a cheesecake shop employee who “blew the whistle” on her employer.

Facts: Leila Ayad vs Whipped

London cheesecake shop, Whipped, had a rule that its shop door was to remain open, during opening hours, to encourage customer footfall. However, this meant that the shop remained open to the weather and seasonal weather variations. Leila Ayad started working at Whipped in May 2023. Around November 2023, she began complaining to her manager, that the shop was too cold in winter and that she had to wear 'three layers and a thermal vest' while on shift. The work also meant that staff had to restock refrigerators in the café which contributed to a colder working environment. Despite being asked, owner Ms Churchill refused to buy a heater as she was worried – the employment tribunal was told – about fire risks (there had been a previous fire in the shop due to a heater).

In a group chat with other colleagues and managers, Ms Ayad complained that it was too cold for her to work. She wrote: “Hey guys, I need to bring to attention the temperature in the shop is getting very cold now with the weather outside” and “I have spoken to [the shop manager] and he has let me know that we will not be getting a heater nor are we allowed to close the door.” She later posted: “Please may this be reconsidered as it was very cold all day today and it's difficult to work like that.”

Also, around this time, Ms Ayad told Ms Churchill that the temperature in the shop had been 12 degrees some days and that she had heard the temperature has to be above 16 degrees indoors for the health and safety of workers. She also referred to the Health and Safety Executive’s guidelines. In response to Ms Ayad’s comments regarding the temperature, Ms Churchill posted in the work group chat: “The door is to be kept open please to avoid customers walking off. It's made a massive difference to the business and customers not coming in as it creates a different experience. A heater has been ordered so I trust you will manage this and ensure this is not left on overnight.”

At the end of December 2023, Ms Ayad had been five minutes late for her shift and was pulled up by Ms Churchill (evidence was presented that other employees, also late – and repeatedly so in some cases – had not been so treated). Then in January 2024, Ms Ayad was called for a meeting by Ms Churchill’s fellow Whipped co-owner (who was also her husband), Mr Musialek, who accused Ms Ayad of being late, having a messy stockroom, and of criticising him and his wife at the staff Christmas party.

No second helpings: Ayad dismissed

Following this meeting, Ms Ayad’s hours were reduced - she was told it was due to a lack of available shifts (although the Employment Tribunal did not accept Whipped’s evidence). Then in April 2024, Ms Ayad received an email saying that her employment was being terminated because she had failed to make any improvements following “formal warnings regarding [her] poor time keeping, attitude towards the role and respect for [her] team and workplace”. Ms Ayad was dismissed without notice, holiday pay and with wages due.

Just “desserts”: automatic unfair dismissal claim for whistleblowing

Despite not having two years’ service, Ms Ayad brought an automatic unfair dismissal claim against Whipped for whistleblowing – making a protected disclosure about health and safety issues. The Employment Tribunal accepted that she was unfairly dismissed because she made 'protected disclosures' about the temperature of the café. Ms Ayad was awarded £21,553.51 in compensation.

As a side, Whipped ceased trading in June 2025 and its parent company has also gone into liquidation.

Trifling times ahead: existing limitations on dismissal

Automatic unfair dismissal rights should not be ignored or underestimated. Whilst managers may think that they are “safe” dismissing someone within their first two years of employment this is not always true – automatic rights, statutory notice periods, contractual obligations, and other employment rights (i.e. discrimination, unlawful deductions, and holiday pay) can all have an impact. Also remember that dismissal for whistleblowing or raising health and safety concerns carries uncapped compensation. It is important to drill down into why a manager is wishing to dismiss an employee, regardless of their length of service. Whilst seeking to increase footfall may well have been a legitimate argument (provided there was evidence in support), this should not be at the expenses of protecting the health, safety, and wellbeing of staff.

The cherry on the top: enhanced unfair dismissal and whistleblowing protection

Proposed day one rights to bring ordinary unfair dismissal claims under the Bill will not impact rights employees have, in limited circumstances, to bring automatic unfair dismissal claims. HR, people teams, and managers need to be alert to the proposed new rules but also remember their obligations as they currently stand (and will continue to), especially when we think about the potential for uncapped compensation. Also, remember that under the Bill, there are plans to enhance whistleblowing protection for those raising allegations of workplace sexual harassment. The implications of automatic unfair dismissal rights should not be an afterthought.