Ms C Cubillos Cruz v City & Essex Ltd — 2019

Ms C Cubillos Cruz worked as a cleaner for City & Essex Limited at Canary Wharf and was dismissed on 12 October 2018. The tribunal identified the dismissal as a conduct dismissal and framed the issues under section 98 of the Employment Rights Act: whether there was a potentially fair reason, whether the Respondent held a genuine belief in misconduct on reasonable grounds after a reasonable investigation, whether dismissal was within the range of reasonable responses, and whether a fair procedure was followed.

The tribunal accepted that the Claimant had been instructed to take her breaks in the basement welfare area and that she knew of that instruction from induction, follow-up memoranda, and a prior performance and conduct report. It found that on 19 September 2018 a new site manager reported poor cleaning standards and that the Claimant reacted by complaining about her holiday refusal and refusing to redo areas. It also found that on 25 September 2018 another manager found her taking a break in a tenant area, that she refused repeated instructions to move to the welfare area, and that she shouted at the manager.

On the evidence, the tribunal preferred the managers' contemporaneous accounts and found it reasonable for the Respondent to believe them over the Claimant. It held that the disciplinary process was reasonable: the allegations were put in writing, the Claimant had an opportunity to respond with trade union assistance and interpretation, and there was an appeal heard by Ms Ribeiro. The tribunal accepted that the dismissal was for the reasons given by Mrs Hookway and that there was no ulterior motive.

The tribunal also considered but rejected the argument that the earlier failure to discipline the Claimant in 2018 made dismissal unfair. It held that the expired final warning and earlier performance and conduct report showed the Claimant knew the relevant conduct was wrong, and that dismissal was within the range of reasonable responses for the two proven matters of misconduct. The complaint of unfair dismissal was therefore dismissed, and no monetary award was made.