Mrs C Dewrow v ISS Mediclean Limited — 2020

The Claimant was employed by ISS Mediclean Limited as a kitchen manager and was seconded to act as Unison convenor for the Wakefield Partnership. The Tribunal found that, although the Respondent maintained a position that it did not recognise a full-time convenor role for its own employees, the Claimant was in fact appointed under the secondment agreement as convenor for the Wakefield Partnership, including the Respondent's employees, and carried out trade union activities at an appropriate time.

Most of the pleaded trade union detriment allegations were dismissed. The Tribunal found that several communications denying that the Claimant was the Respondent's convenor were made to maintain the Respondent's position about recognition, rather than for the main purpose of preventing or deterring trade union activities. It also found that the St Michael's School complaint and related investigatory steps were pursued to investigate that complaint, not for the proscribed purpose.

The section 146 TULRCA complaint succeeded in relation to the refusal or failure to allow the convenor secondment to continue. The Tribunal found that the secondment was not limited to a fixed two-year term, continued third-party funding was available, there was no operational need for the Claimant to return to the kitchen manager role, and the Respondent's main purpose in ending or not extending the secondment was to prevent or deter the Claimant's trade union activities. The Claimant reasonably viewed the loss of the full-time convenor role and potential return to a shop steward role with reduced scope as a detriment.

The Tribunal held that the same conduct amounted to a fundamental breach of the implied term of trust and confidence. The proposed final straw on 16 September 2019 was not itself conduct of the Respondent because the communication came from Engie, but the Claimant had not affirmed the contract and the refusal to continue the secondment was an effective cause of her resignation. The Tribunal found that she was constructively dismissed and that the principal reason for the Respondent's breach was her taking part in trade union activities at an appropriate time, so the automatic unfair dismissal complaint under section 152 TULRCA succeeded. Remedy was reserved for a separate hearing.