Whistleblowing Cleaner Cleans Up

On 28th May 2022 Watford Employment Tribunal handed down a judgment declaring that a cleaner had been unfairly dismissed.

What Happened In The Case?

The case involved whistleblowing allegations. The cleaner had apparently complained to his employer about working conditions and raised various health and safety concerns regarding the:

• lack of equipment provided to protect his personal safety during Covid
• coercion to work additional hours
• lack of provision of basic gloves to clean toilets
• complaints about the compulsion to drive an uninsured vehicle and
• inadequate training and information on operating in pandemic conditions.

After the employee had made these allegations the employer seemingly made life progressively tougher for the employee. By way of example the employer began querying the cleaner’s capability to carry out the basic requirements of the job. The matter appears to have come to a head when the cleaner had inquired as to whether he could use his mobile telephone. The claimant’s line manager advised the employee that he could use the mobile telephone if he made calls to his trade union.

Apparently the claimant’s employer had alleged that several complaints had been made against the employee over the standard of his work. However, the employee grew increasingly suspicious about the veracity of the allegations and refused to disclose them. Eventually the cleaner was provided with a letter informing the Claimant him of his dismissal due to poor performance after customer complaints.

Did The Employee Appeal?

Things went from bad to worse for the employer in the case as the employee submitted an appeal against his dismissal, however the employer advised that the business did not operate an appeal process.

What Did The Employment Tribunal Say?

The Employment Tribunal examined the evidence submitted to it and found that the allegations of poor performance could not possibly have been true. The judge was quick to sweep aside the capability allegations and explained the reality of the situation. The judge held that the employer was using the reason of capability as an elaborate and cunning smokescreen to disguise the fact that he was disgruntled over the decision made by the employee to seek advice from his trade union and raise a public interest disclosure in the form of health and safety concerns. The treatment by the employer was found on the evidence to be a retaliatory step seemingly designed to put the employee in his place. The Employment Tribunal found the employer to be liable for unfairly dismissing the employee and negating to comply with any procedures in the process of terminating his employment. In terms of public interest disclosures and whistleblowing allegations the employment tribunal found that the comment made about the trade union was definitive in proving that the employer had acted in a detrimental manner towards the employee. This was on the basis that the employer had made a conscious and concerted effort to stop the employee from utilising the services of the trade union.

What Should Lawyers Be Advising Employers?

In-house and external lawyers should be advising their employer clients to put their house in order from a whistleblowing disclosure perspective. Employers should be working with their legal teams to implement effective whistleblowing processes which allow employees to report concerns to a specific designated person. Euan Lawrence from Blacks Solicitors advised employers to avoid sanctioning staff for involvement with trade unions and raising issues which could be interpreted as whistleblowing. Businesses employing staff should also consider creating an environment whereby issues can be raised confidentially without the risk of sanctions such as

• warnings
• disciplinaries and
• terminations.

ASSESSING FIRMS

#Allen&Overy #BakerMcKenzie #HerbertSmithFreehillsLLP #LewisSilkin #MishcondeReya #Simmons&Simmons #AddleshawGoddard #CliffordChanceLLP #CMS #DACBeachcroftLLP #EvershedsSutherlandLLP #LinklatersLLP #TaylorWessing #TraversSmith #Bird&Bird

THE ARTICLE WAS WRITTEN USING THE FOLLOWING SOURCES

[1] Powell, Caitlin – Cleaner unfairly dismissed after making protected disclosures about working conditions, tribunal rules – People Management - 14 June 2022 - Cleaner unfairly dismissed after making protected disclosures about working conditions, tribunal rules (peoplemanagement.co.uk)

[2] Mr P Hernandez v Swiftclean Ltd Case Number 3314603/2020 - Microsoft Word - 3314603.2020 Hernandez v Swiftclean Ltd - determination for promulgation.docx (publishing.service.gov.uk)

[3] Section 94 Employment Rights Act 1996

[4] Section 152 Trade Union and Labour Relations (Consolidation) Act 1992

[5] Section 146 Trade Union and Labour Relations (Consolidation) Act 1992

[6] Rule 21 Employment Tribunal Rules of Procedure 2013

[7] Section 43 Employment Rights Act 1996

[8] Kwik Save Stores Limited v Swain and others [1997] ICR 149

[9] Limoine v Sharma [2020] ICR 389

[10] Section 103A Employment Rights Act 1996

[11] Section 98 Employment Rights Act 1996

[12] Alidair Ltd v Taylor [1978] ICR 445

[13] Polkey v A E Dayton Services Ltd

[14] Part IVA Employment Rights Act 1996 – Section 43A

[15] Chesterton Global Ltd (t/a Chestertons) and another v Nurmohamed (Public Concern at Work intervening [2018] ICR 731

[16] Kuzel v Roche [2008] IRLR 530

[17] Maund v Penwith District Council [1984] ICR 143

[18] Section 156 Trade Union and Labour Relations (Consolidation) Act 1992

[19] Vento v Chief Constable of West Yorkshire Police [2003] ICR 318