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and assessed whether these remained the same or were fundamentally different once notice was served to stop the provision of a service. Specifically, the claimant was employed by Broadland Guarding Services Ltd (Broadland) until her dismissal on 30 June 2018, working in a CCTV control room out of hours, between 6pm and 6am. On 28 May 2018, Broadland gave one month’s notice to the respondent (London Borough) to end the contract. The respondent’s own Careline staff were also based in the control room. Their duties included responding to emergency alarms in clients’ homes and liaising with various parties following on from the alarms. They were also the main point of call out of hours for all other council matters, such as: l calls for social workers l emergency responses and calls regarding noise complaints l littering and missed bin collections. Following the termination of the Broadland contract, the respondent chose to no longer employ a full-time CCTV operative between 6pm and 6am. According to the claimant, the end of the notice period was the date on which she transferred to the respondent. She alleged that the respondent’s existing staff working in the control room on the respondent’s Careline team took over CCTV monitoring, and the same activities continued after the alleged transfer date. On that basis, she brought a claim against the respondent for automatic unfair Regulations 2006 (‘TUPE’) set out an employee’s right to transfer to a new employer, and continue in their role, where a service provision change applies The Transfer of Undertakings (Protection of Employment)
‘detrimental to the business.’ However, a limited investigation was conducted, and a proper process not followed. As such, the employee went on to raise claims for unfair dismissal and
dismissal, as the transfer was the sole, or principal, reason for her being dismissed. The ET and Employment Appeal Tribunal both agreed that, once Broadland ended the contract, the activities completed by the Careline staff were fundamentally different. In making this determination, the tribunals considered the fact that the respondent chose not to employ a full-time CCTV operative for out of hours cover. Instead, the responsibility for monitoring the CCTV was absorbed as part of the much wider Careline staff role. Due to the significant number of other duties the team were already doing, CCTV monitoring made up a minimal part of their role (around a maximum of 5% of working time). The nature of the CCTV monitoring function was therefore deemed to be substantially different than the claimant’s pro-active role, which would no longer exist. It also found that this was not done to avoid the TUPE regulations applying, but instead was a result of budgetary constraints that meant the money historically used to fund the CCTV operatives was needed elsewhere. As a result, the service was found to be fundamentally different once it was incorporated into the Carline staff duties, so no TUPE transfer took place, and the case was dismissed. Lack of policies contributes to unfair dismissal In the case of Trench v Performance Bar Limited, the claimant had worked at the respondent’s bar from November 2018 until November 2020. Her partner also worked at the same bar but, following an altercation, resigned with immediate effect in October 2020. Shortly after, her partner published a lengthy Facebook post which was critical of both the bar and its owner. Included in the Facebook post were comments referring to how ‘creepy’ the manager was and his ‘wildly inappropriate behaviour,’ such as sexual harassment and allowing underage drinking. The post, which was liked, commented on and shared by the claimant, further accused the manager of having no interest in staff well-being, saying he didn’t provide rest breaks or follow Covid safety procedures. Despite deleting the post and apologising for her actions, the claimant was dismissed for gross misconduct six days later due to the post being
automatically unfair dismissal. The ET agreed, finding that the employer had no social media or
disciplinary policy warning employees that this behaviour was a disciplinary issue. Similarly, the dismissal fell outside the range of reasonable responses, since no reasonable investigation was followed. The further lack of process (e.g., written invite to investigation and disciplinary meeting, and offer of right to appeal etc) rendered the dismissal procedurally unfair. It concluded that the employee deleted her comments and hadn’t acted to deliberately damage the bar’s interests. As such, the ET stated no reasonable employer would have dismissed in these circumstances, so upheld the claim for unfair dismissal. The ET then turned to the question of automatic unfair dismissal and whether a ‘protected disclosure’ had been made. On the basis that the post contained factual information of the respondent’s failure to comply with legal obligations, and that the claimant reasonably believed the allegations at the time, this was sufficient to make the act of liking and sharing the Facebook post a protected disclosure. The ET dismissed the claim of automatic unfair dismissal and victimisation by finding that the reason for the dismissal was publicly sharing a post that was critical of the respondent, and however right or wrong that decision was, it did not make the dismissal automatically unfair. The case highlights the importance of having robust policies and procedures in place. Doing so ensures all parties are clear of the possible consequences of breaching clearly set company policy. It also helps make sure employers are consistent in how they manage situations, such as disciplinary issues, and how they treat staff. Combined, this safeguards the organisation from tribunal claims, as there are identifiable standards and expectations which all employees are aware of and must follow. n
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| Professional in Payroll, Pensions and Reward |
Issue 85 | November 2022
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