Employer’s response to Covid whistleblowing leads to successful unfair dismissal and detriment claim
An Employment Tribunal has upheld a claim of unfair dismissal and detriment by a cleaner after he made protected disclosures about working conditions during the Covid pandemic.
The Tribunal heard that Mr Hernandez was dismissed by his employer Swiftclean for “poor performance” after he raised concerns about safety at work and the lack of personal protective equipment (PPE).
In January 2020 Hernandez and two colleagues made a protected disclosure via their 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, with further complaints about lack of appropriate information or training following the start of the pandemic and a lack of adequate PPE being added later.
In May the trade union representative sent a further email on behalf of the trio requesting a formal consultation about the risks posed by Covid-19 and their concerns; but later, in July, Hernandez’s manager told him that he needed to use his personal mobile for work matters outside of his working hours. When Hernandez refused to do so, the manager said that if Hernandez could use his mobile to call his “shitty union that is worthless” he could also call him. The judge found that the statement amounted to detriment.
In September Hernandez was informed that he was dismissed 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. Although Hernandez appealed his dismissal no appeal hearing was held.
The tribunal ruled that Hernandez’s claims of unfair and automatic unfair dismissal were well-founded, as was his claim of unlawful detriment.