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Cleaner wins unfair dismissal claim after making protected disclosures about working conditions

Makbool Javaid, Partner - Simons Muirhead & Burton

In Mr P Hernandez v Swiftclean Ltd Mr Hernandez was employed by Swiftclean Ltd as a cleaning operative from 4 September 2018 until his dismissal (with effect from 21 September 2020). At the time of his dismissal, he earned £9 per hour and worked 48 hours per week. He was dismissed on grounds of poor performance but claimed not to have been warned about poor performance prior to his dismissal and maintains that no process was followed in dismissing him.

On 23 January 2020, he and two colleagues raised a protected disclosure via their trade union representative, in which they raised concerns about, amongst other things, being pressured to work extra time, being provided with inadequate equipment, being required to drive a car with expired insurance, and not being given gloves to use when cleaning toilets. They raised a further protected disclosure about the lack of appropriate information or training in respect of the COVID-19 pandemic and a failure to provide adequate personal protective equipment.

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”.

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

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