United Kingdom Employment Appeal Tribunal

APPEARANCES

 

 

For the Appellant	Mr A Murdoch, Solicitor Of The McKinstry Company Queens Court House 39 Sandgate AYR KA7 1BG
For the Respondents	Mr C Young, Solicitor Of- Messrs Lockharts Solicitors Berkeley House 1 Barns Street AYR KA7 1XB

SUMMARY
UNFAIR DISMISSAL

Unfair dismissal – reasonableness of dismissal.

DDA 1995 – reasonable adjustment


 


LORD JOHNSTON:

1. This an appeal from the Employment Tribunal sitting in Glasgow against a finding that the principal reason for dismissal of the appellant was not related to circumstances disclosed in section 100 of the Employment Rights Act 1995.
2. The background to the matter is that the appellant was employed as a cleaner by the respondents, who run a contract cleaning business, and, at the material time, was working at garage premises in Ayr.
3. The Tribunal made the following findings in fact:-

"1. The respondents are a limited company engaged in the provision of contract cleaning services. One of their customers is a firm of car dealers, Ingram Volkswagen, based in Ayr.

2. The applicant generally worked as a cleaner in the. premises from 7pm until 9:30pm. Her duties were to clean the show room, the parts department, toilet, kitchen and an administrative area. She commenced her employment on 4 February, 2002. She was employed at the same time as Miss Campbell, with the two of them working as a team.

3. The Tribunal heard a great deal of rather confusing evidence about events between February and April. It is sufficient to record that we were satisfied that Mr Jones was not happy with the performance of the applicant. He had to take her to task on a number of occasions for a poor standard of work, and what he regarded as unnecessary claims for overtime. This culminated in formal discipline on 1 April, only six weeks after the applicant started, when she was given a verbal warning for the following reasons "continued discrepancies in time sheets, overtime disputed by customer, poor timekeeping, poor standard of work, aggressive and confrontational attitude". On the evidence, we were satisfied that the last of these referred to the other applicant, Miss Campbell but the entry in the computer file for both is in similar terms. In relation to this computer entry, we were satisfied that it did not require to be copied to the applicants. This was simply an informal record of a verbal warning and did not require to be followed up in any written form. It was clear from this evidence that the clients had already been complaining to the respondents about the applicants.

4. Matters came to a head on 8 April. We were satisfied that, notwithstanding the evidence of Mr Jones, workmen were present in the premises that evening. To what extent this interfered with the duties of the applicants was unclear, but it would seem reasonable that if the administrative area was having repairs carried out to its heating system, there would be ladders, tools, cabling, present. The applicant took the view that to attempt to clean the area would have placed her in serious and imminent danger, and would have been unwise. She considered it was more sensible and appropriate to protect her own personal safety by thoroughly cleaning administrative area the following evening. Unfortunately, she only communicated this to the respondents on her time sheet, which would not be looked at for some days. On her time sheet is the following "could not clean admin and the office next door as the heating was getting sorted".

5. Thereafter, the clients called in the respondents general manager, a Mr Gratton. They made it clear to him that they were not satisfied with the work being carried out by the cleaners. A meeting was called, at which Mr Gratton and Mr Jones attended. It was made clear to the respondents that unless the cleaners were removed from the site, the respondents would lose the contract. The complaints were about lack of cleanliness in the toilet, tea stains left untouched, etc and were not confined to any particular area.

6. Mr Jones met the two applicants on the evening of 10 April, which was the date when the meeting with the clients took place. The meeting with the applicants was brief. According to Mr Jones, he told the cleaners "that was it". The applicant did complain to him about the health and safety issues but Mr Jones indicated to them that their conduct had been poor over a period of time. The dismissal was nothing to do with health and safety. He pointed out dirty marks on the show room floor which should have been cleaned the previous evening; the applicants claimed that these marks had not been there when they had finished. After this brief conversation, which became heated, the applicants were dismissed.

7. The dismissal was not confirmed in writing, nor was any right of appeal offered."

4. The substance of the decision is as follows:-

"We were satisfied that there had been workmen there; we were also satisfied that the applicant's view of the circumstances was reasonable. If that had been the only incident, then we would have expected to see at least an attempt by the respondents to explain the circumstances to the customers and effectively support their employees. In the absence of such an attempt, our view would be likely to have been that the applicant was taking "appropriate steps" and that the dismissal was automatically unfair in terms of the section, notwithstanding the third party pressure.

However 8 April was not the only incident, but was merely the latest in a series. Another problem had existed the following evening.

In identifying the principal reason, we took into account the remarks in Abernethy v Mott Hay and Anderson 1974 ICR 323(CA)

Since in our view the principal reason for the dismissal was not the conduct of the applicant but was some other substantial reason in the form of third party pressure, then the terms of Section 100(e) do not apply. The applicant does not have qualifying service in terms of Section 108, and accordingly this application falls to be dismissed."

5. The relevant section is in the following terms:-

"(1) an employee who is dismissed shall be regarded …… as unfairly dismissed if the reason (or if more than one, the principal reason) for the dismissal is that -

(e) in circumstances of danger which the employee reasonably believed to be serious and imminent, he took or proposed to take appropriate steps to protect himself or other persons from the danger."

6. Mr Murdoch, appearing for the appellant, had a number of grounds of appeal. In particular, he was concerned that the findings of the Tribunal did not adequately indicate that the principal cause of dismissal had been, in fact, third party pressure, i.e., from the owners of the garage. At best, he maintained the evidence disclosed a desire on the part of garage owner to have the ladies removed from his premises.
7. However, his principal submission was to the effect that the Tribunal had, in fact, accepted on its findings, the explanation put forward by the ladies as to their reaction to the presence of the workmen on the relevant date, endangering their safety, as they saw it. This, the Tribunal in the findings we have narrated, held to be reasonable. Thus, said Mr Murdoch, this disclosed the principal reason was, in relation to the health and safety issues, focussed in section 100.
8. Mr Young, appearing for the respondents, submitted, that, across the board that was merely one of the factors in a much broader equation, including the issue of conduct and performance. There was also a question as to whether the ladies in question could be relocated. Even if, therefore, he submitted, the Tribunal went too far in its finding with regard to a substantial other reason, mainly pressure from a third party, the appellant failed to make out any case that the principal reason for dismissal related to section 100.
9. With this latter proposition we agree. Looked at broadly, we consider that the principal issue in the dismissal process might well have been the conduct of the employee throughout the beginning of her working time with the company, and, we are not necessarily satisfied that the evidence on the findings, discloses third party pressure as being the principal reason. What, however, is absolutely clear to us, is that the issue of health and safety on the one occasion cannot be divorced from the other aspects of the case as creating a principal reason for dismissal. It is not necessary for us to make a finding as to what the principal reason for dismissal was, although we have some hesitation that the Tribunal's finding is justified upon the evidence, as we have so stated. What, however, is manifestly clear to us, is that the evidence does not disclose that the principal reason related to section 100. This is what the appellant must establish and she has failed to do so.
10. In these circumstances and for these reasons this appeal is dismissed.