Reward insight
The claimant in this case had worked for the employer as a cleaner since 2009 and was an active member of a trade union. She had previously been involved in various group grievances against the employer, which included disputes about holiday pay, uniforms and favouritism among management. In February 2016, the union wrote to the employer asking that London based staff, which included Benavides, receive a pay rise and threatened to take strike action if a resolution was not agreed by 11 March 2016. As the two sides could not come to an agreement a protest took place outside of the employer’s Oxford Street store on 12 March 2016. The claimant helped organise this protest of over 200 people as well as making several comments on social media criticising the employer’s treatment of her and encouraging people to boycott the store. This demonstration led to the store being closed for fifteen minutes and Benavides’s manager was keen to see her dismissed for her involvement. As such the claimant was later dismissed on the grounds of gross misconduct relating to her social media comments, which was in breach of the company’s social media policy. Benavides proceeded to raise a claim with an ET for unfair dismissal citing section 152 of the Trade Union and Labour Relations (Consolidation) Act 1992, which protects employees from being dismissed on the grounds of their union membership or activities. Having reviewed the evidence, the ET upheld the claim, outlining that it was not unusual or unreasonable for a trade union member in the claimant’s position to exert pressure in order to secure improvements in terms or conditions. The ET found that the claimant’s online comments amounted to taking part in the activities of a trade union, which meant that she was sufficiently protected, despite breaching the company’s social media policy. The employer tried to argue that the claimant’s involvement in large scale public action was not covered by section 152 of the Act; however, the ET disagreed with this point and concluded that no reasonable employer would have chosen to dismiss the claimant in this situation. The result of this case goes to show the strength of the protections afforded
to trade union members, as even though the claimant had breached the company’s social media policy and participated in action which led to a temporary closure of the business, she was still protected from dismissal for gross misconduct. Therefore, employers need to take extra care when disciplining union members to avoid claims of unfair dismissal. However, it should be noted that the respondent plans to appeal the decision and further test the protections afforded by section 152. ... remember that just because an employee has under two years’ service it does not mean they have no rights Spaceman v ISS Mediclean Ltd t.a. ISS Facility Service Healthcare This case examined both the limitations of a protected disclosure and whether an employee could assert his statutory right not to be unfairly dismissed, having heard that his employer may have been intending to dismiss him even before a disciplinary procedure had been carried out. The employee in this case had less than two years’ service and worked for ISS Mediclean as a hospital porter based in West Middlesex University Hospital. He was required to work night shifts, which involved him working alongside female hospital staff employed to work on a help desk. In April 2017, one of these female employees alleged that Spaceman had subjected her to sexual harassment and assault, for which he was placed on suspension. During his suspension, two further female employees made broadly similar claims about him. A disciplinary hearing took place during which Spaceman alleged that a colleague had refused to accompany him as the organisation had already made up its mind to dismiss him and informed his colleague of this. After the hearing, the employer upheld
the allegations of sexual harassment and assault and the claimant was subsequently dismissed. He argued that this dismissal amounted to an infringement of his statutory right not to be unfairly dismissed as outlined in section 104 of the Employment Rights Act 1996. He also asserted that he had been unfairly dismissed for making a protected disclosure. These claims were struck out at the initial ET, which outlined that Spaceman had no reasonable prospect of success. In forming their decision, the ET held that the statutory right not to be unfairly dismissed cannot be asserted until after the dismissal has taken place. Therefore, any allegation needed to show that he had been unfairly dismissed without due process and not just that the organisation had threatened to do so. With regards to the protected disclosure claim, the ET found that, in this situation, the disclosure would fail the test to determine if it was in the public interest. The claimant appealed this decision to the EAT, which dismissed his appeal and agreed with the reasoning of the ET. The EAT went further in explaining that the provision in section 104 is aimed at preventing dismissals made in retaliation for trying to enforce or assert an employment right. This protects individuals who have made complaints about past, rather than prospective, conduct as was the case here. They also agreed that there was no public element to the protected disclosure claims as it was specific to sexual harassment allegations that had been personally levelled at the employee. This case reaffirms that for automatic unfair dismissal to apply in these situations, there must be an allegation by an employee that there has been an infringement of a statutory right not to be dismissed unfairly. It will not be enough to argue that the employer has threatened to or intends to infringe such a right. As far as employers are concerned, when making decisions to dismiss it is important to remember that just because an employee has under two years’ service it does not mean they have no rights. If the employee can show that their complaint was the principle reason for their dismissal and related to a relevant statutory right, then an unfair dismissal claim under section 104 can be brought to tribunal. n
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| Professional in Payroll, Pensions and Reward |
Issue 51 | June 2019
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