Cleaner Unfairly Dismissed Following ‘Engineered’ Disciplinary Process

Employers may be put under pressure by an unhappy client to take action against a particular employee. However, as an Employment Tribunal (ET) ruling showed, that is all the more reason why a scrupulously fair procedure must be followed.

The case concerned a cleaner who underwent a PCR test at a walk-in COVID-19 testing centre. He later completed a shift at a supermarket. That evening, he was notified that the test was positive and swiftly informed his employer, a cleaning contractor. He duly entered the compulsory 10-day period of isolation.

The cleaner was adamant that he had no symptoms of the virus when he dropped into the testing centre on the spur of the moment. The manager of the supermarket, however, said that he was coughing and looked unwell at work and was very unhappy that he had entered the premises. He told the employer that its contract would be in jeopardy if the cleaner were seen again at the supermarket. The cleaner was soon afterwards dismissed on grounds of gross misconduct.

In upholding his unfair dismissal claim, the ET found that, faced with an angry client who insisted that the cleaner had breached health and safety rules, the employer engineered a disciplinary process which ensured that it kept its contract. No proper investigation was carried out and the employer did not have reasonable grounds for believing that the cleaner was guilty of misconduct. It followed that his dismissal did not fall within the range of reasonable responses open to the employer.

The procedure followed was unfair in that, amongst other things, the cleaner was not invited to the disciplinary meeting at which the decision was taken to dismiss him. No consideration was given to the possibility of suspending him temporarily or redeploying him to another site. The amount of his compensation would be assessed at a further hearing, if not agreed.