Dismissal following H&S concerns was automatically unfair
In the case of Hernandez v Swiftclean Ltd, a cleaner raised concerns through his trade union regarding working hours, not being given gloves for toilet cleaning, being forced to use an uninsured car for work and lack of adequate PPE or training. Together, these issues amounted to a protected disclosure under the Employment Rights Act 1996.
A protected disclosure is when an employee reasonably believes a wrongdoing at work has happened, which is in the public interest. This has to be either: a criminal offence; failure to comply with legal obligations; a miscarriage of justice; health and safety is endangered; the environment is damaged; or, any action to conceal these. The employee must also raise the issue to a relevant person, such as an appointed individual within the organisation, or to an external party. Common examples include the HSE, local authorities, MPs or regulatory bodies.
Where a disclosure is protected, employees are able to raise whistleblowing claims to the employment tribunal if they are placed at a detriment for raising the issues. Similarly, under the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), a dismissal will be automatically unfair if the reason for the dismissal is that the employee had made use of trade union services at an appropriate time.
During the pandemic, multiple health and safety issues were raised by the employee, with support from his trade union representative, but were repeatedly ignored by the employer. In July 2020, Hernandez was instructed to use his personal mobile phone for work outside of his normal hours; he refused. In response, his manager said, “If you can use your mobile to call your s****y union that is worthless, you can also call me.” This was seen by the employee as an attempt to stop or deter him from speaking further with the union rep.
In September 2020, out of the blue, Hernandez received a dismissal letter alleging poor performance as a result of client complaints. No evidence of the complaints was provided, nor was any dismissal process followed. An appeal was made but ignored, leading the employee to raise claims for unfair dismissal, automatic unfair dismissal, and unlawful detriment.
The Employment Tribunal (ET) upheld all claims, concluding the real reason for the dismissal was because the manager was annoyed that Hernandez had raised protected disclosures and had used a trade union to do so, so was punishing him as a result. This made his dismissal automatically unfair on two counts: making a protected disclosure and using services of a trade union.
The ET further highlighted that, even if the employee did not meet the tests for automatic unfair dismissal, he would have won an ordinary unfair dismissal claim. This is due to his termination being both substantively and procedurally unfair; no evidence was provided of his alleged poor performance, nor were any meetings held with him, to give him the opportunity to explain his actions. Due to the lack of fair process, the ET added a 25% uplift to compensation.