A cleaner was automatically unfairly dismissed after making protected disclosures
In Hernandez v Swiftclean, a cleaner made protected disclosures via his trade union about working conditions, safety and Covid-19 measures. The cleaner was dismissed for poor performance, although no process was followed to dismiss him. The cleaner was also subjected to detriment when his manager referred to his trade union as ‘shitty’ and ‘worthless’. As a result, the claims of unfair and automatic unfair dismissal were successful, as well as unlawful detriment.
You can read the full judgment here: Hernandez v Swiftclean
Background of Hernandez v Swiftclean
Hernandez was employed as a Cleaning Operative with Swiftclean from September 2018 until his dismissal in September 2020.
In January 2020, Hernandez and two colleagues raised several concerns via their trade union, including being pressured to work overtime, inadequate equipment, being required to drive a car without insurance, and not being given gloves to use when cleaning toilets. Swiftclean did not respond to the concerns raised.
In May 2020, Hernandez and a colleague raised further concerns via their trade union about the lack of training and information on Covid-19 and the failure to provide PPE. A request was made via the union for formal consultation on the risks posed by the pandemic. In July 2020, Hernandez refused to use his personal mobile for work matters outside of his working hours. His manager, Costa, responded in Spanish with words to the effect of ‘if you can use your mobile to call your shitty union that is worthless, you can also call me.’
On 7 September 2020, Hernandez was informed in writing that he would be dismissed with effect from 21 September 2020 due to poor performance as a result of complaints received from clients. The complaints were not shown to Hernandez, and no process was followed to dismiss him. Hernandez appealed the decision to dismiss but was not provided with an appeal hearing.
Hernandez brought claims of unfair dismissal, automatic unfair dismissal for raising a protected disclosure and making use of trade union services, and unlawful detriment.
The Employment Tribunal ruling
Swiftclean failed to respond to the employment claims within the 28-day time limit. On the day of the employment tribunal hearing, Swiftclean made an application seeking an extension of time to defend the claims. Swiftclean’s application was unsuccessful as they could not demonstrate a good reason for the delay. Swiftclean’s participation in the hearing was limited, and they could not provide evidence supporting their defence.
In relation to the automatic unfair dismissal claims, the tribunal found that the concerns raised via the trade union in January and May 2020 amounted to protected disclosures. The disclosures were made in the public interest and related to the company’s failure to meet legal obligations and the endangerment of employees’ health and safety. Furthermore, the tribunal held that by engaging the trade union to contact Swiftclean on his behalf, Hernandez was making use of trade union services.
In response to the unfair dismissal claim, the tribunal ruled that no adequate investigation or process had been carried out to determine whether Hernandez was competent to perform his role. The complaints received from clients were no more than an excuse to dismiss him.
Judge Smeaton stated that Swiftclean:‘had failed adequately to engage with the Claimant’s concerns raised by email, had treated the Claimant badly after raising those concerns, had specifically reprimanded him for using his trade union and had failed to follow any sort of process in which the fairness of the dismissal could be properly examined, I find that the real reason for the Claimant’s dismissal was because the Respondent was annoyed that the Claimant had raised protected disclosures and that he had used his trade union in order to do so and was punishing him as a result.’
Furthermore, the tribunal found that Costa’s behaviour towards Hernandez in referring to the trade union as a ‘shitty union that is worthless’ amounted to an unlawful detriment.
The claims of unfair and automatic unfair dismissal were successful, as well as the claim of unlawful detriment. As Swiftclean failed to follow any process in dismissing Hernandez, a 25% uplift to the compensation award was applied. In total, Hernandez was awarded £19.7k in compensation.
What does the Hernandez v Swiftclean ruling mean for employers?
Hernandez v Swiftclean clearly illustrates the importance of responding to employment claims promptly. Time limit extensions will only be granted in exceptional circumstances.
Furthermore, this case is a reminder of the absolute prohibition on subjecting workers to any detriment (including dismissal) if they whistleblow or join a trade union.
Employers should familiarise themselves with the definition of a ‘protected disclosure’ as it isn’t always obvious. A protected disclosure is a disclosure of information which is made in the public interest showing one of the following:
- A failure to comply with a legal obligation; or
- That the health and safety of an individual is endangered
The disclosure must be made to the employer or an appropriate body, such as the Health & Safety Executive or the Serious Fraud Office. The worker making the disclosure will be protected from any detriment or unfair treatment at work, including dismissal.
How can employers learn from Hernandez v Swiftclean? It’s crucial that we encourage an open and transparent culture where workers feel comfortable raising concerns and have confidence that they will be addressed appropriately. You can achieve this by ensuring a whistleblowing policy is in place, as well as nominating a member of staff to whom disclosures can be made.
What can we do to help?
If you are an employer and would like support with handling a HR situation, please contact our team on 0330 223 5253 or office@fitzgeraldhr.co.uk. We would be delighted to help you.
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