Cleaner unfairly dismissed after making protected disclosures about working conditions, tribunal rules

Employee was also subject to detriment after his manager called his union ‘worthless’

Credit: Peter Dazeley/Getty Images

A cleaner was automatically unfairly dismissed after he made protected disclosures through his union about working conditions, a tribunal has ruled.

The Watford Tribunal heard that Mr Hernandez was dismissed for “poor performance” after he raised concerns about safety at work and the lack of personal protective equipment (PPE) during the pandemic.

He was also told by his manager that if he could use his personal phone to “call [his] shitty union”, he should be able to use it for work calls.

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The tribunal found that Hernandez was not shown any of the client complaints that allegedly led to his dismissal, nor was any process followed in dismissing him.

Employment Judge Smeaton said the real reason for Hernandez's dismissal was because his employer was “annoyed he had raised protected disclosures and used his trade union in order to do so, and was punishing him as a result”.

Hernandez was employed as a cleaning operative at Swiftclean from September 2018 until he was dismissed on 21 September 2020.

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On 23 January 2020 he made a protected disclosure alongside two colleagues via a trade union representative. Their complaints included being pressured to work extra time; inadequate equipment; having to drive a car with expired insurance; and not being given gloves to use when cleaning toilets.

Hernandez and a colleague made a second disclosure on 7 May, reiterating the previous concerns but also outlining the lack of appropriate information or training following the start of the pandemic and a lack of adequate PPE.

On 22 May, his trade union representative sent a further email on his behalf and that of his colleague, requesting a formal consultation about the risks posed by Covid-19 and their concerns.

The tribunal heard that, on 27 July, Hernandez’s manager, Augusto Costa, told him that he needed to use his personal mobile for work matters outside of his working hours. When Hernandez refused to do so, Costa said words to the effect of: “If you can use your mobile to call your shitty union that is worthless you can also call me.”

During the tribunal, Hernandez argued that his manager had said this “for the purpose of preventing or deterring him from making use of trade union services at an appropriate time”. The judge found that the statement did amount to detriment.

Hernandez received a letter on 7 September informing him that he was dismissed with effect on 21 September, on the basis of “poor performance following alleged complaints from clients”. 

However, the tribunal noted that the complaints were not shown to Hernandez and no process was followed in dismissing him.

On 14 September, Hernadez appealed his dismissal with the assistance of his trade union. But, although Costa replied to that email, he did not provide an appeal hearing. 

The tribunal ruled that Hernandez’s claims of unfair and automatic unfair dismissal were well-founded, as was his claim of unlawful detriment. 

Commenting on the ruling, Euan Lawrence, partner at Blacks Solicitors, said the case was a stark reminder to HR professionals about the absolute prohibition on subjecting employees to any detriment or dismissing them because of whistleblowing or trade union activities.

“A ‘protected disclosure’ will often not be described as such – or as ‘whistleblowing’ – by an employee but it will still qualify for protection,” he said.

Lawrence added that fostering an open culture where staff feel comfortable with reporting concerns that they have and making it clear that there will be no repercussions for doing so could help protect firms from claims.

He also suggested firms ensure they have adequate policies and procedures in places specifying designated people to whom sensitive disclosures should be made.

Hernandez could not be reached by People Management. Swiftclean has been contacted for comment.