Mr A Kamara v Kent Gurkha Company Ltd — 2021

Mr A Kamara worked as a cleaning supervisor at Coopers Technology College and transferred to Kent Gurkha Company Limited on 19 March 2018. The tribunal found that, before transfer, he was a non-working supervisor. After transfer, the respondent proposed changing the role to a working supervisor requiring routine cleaning for part of the shift. Although the respondent upheld the claimant's grievance in June 2018 and said it would not impose the change without consultation, the tribunal found that the consultation process then continued with the same objective and that, in the absence of clear agreement from the claimant, the respondent effectively imposed the additional duties.

The tribunal held that requiring him to carry out daily routine cleaning was a substantial change in working conditions and was to his material detriment because it reduced the time available for his supervisory duties by half and changed the status of the role. It rejected the respondent's argument that the claimant had agreed to the change at the 3 July 2018 meeting or by signing the revised contract, and it did not treat his delay in resigning until 9 January 2019 as preventing reliance on TUPE regulation 4(9). The tribunal therefore found that the claimant was dismissed.

On the reason for dismissal, the tribunal found that the respondent's pleaded case was not made out. It found that the real reason was a desire to save costs by reducing supervision time from four hours to two, arising from the transfer and from the respondent not having budgeted for a non-working supervisor. The tribunal concluded that the sole or principal reason for the dismissal was the transfer. It also held that the respondent had not established an economic, technical or organisational reason entailing changes in the workforce, so the dismissal was automatically unfair. It therefore did not need to decide the alternative ordinary constructive dismissal case.

On remedy, there was no dispute that the claimant was entitled to a basic award of £2,970. The tribunal awarded a compensatory award of £2,090.70, made up of £1,640.70 for 10 weeks' loss of earnings and £450 for loss of statutory rights. It declined to award any ACAS uplift because no failure to comply with a relevant Code of Practice was identified. The total award was £5,060.70, with a prescribed element of £1,640.70 and balance of £3,420.00 for recoupment purposes.