Mrs W Osinska v Pendergate Limited, trading as Ridge Crest Cleaning Services — 2019

Mrs W Osinska was employed by Pendergate Limited as a cleaner at St Bernard's High School and had been transferred to the respondent in 2016 under the TUPE Regulations 2006. The respondent relied on some other substantial reason for dismissal after the school business manager asked that the claimant be removed from site. The tribunal accepted that the respondent sought to avoid dismissal if possible by discussing retraining, suspending the claimant on full pay while it explored options, and identifying alternative vacancies.

The tribunal found that the claimant had accepted there was a clash of personalities with her site manager, Ms Ozdemir, and that she had shouted and swore in front of teachers and at least one sixth form student. It accepted Mr Newton's evidence that the school had raised concerns about the claimant's behaviour and the standard of cleaning, and that the school repeated its request that she be removed. The tribunal also found that the respondent warned the claimant that dismissal might follow if no suitable alternative role was accepted.

The tribunal accepted that the respondent offered available vacancies, including a role at Rayleigh which Mr Newton considered within reasonable travelling distance from Southend, but the claimant rejected the alternatives because of distance and because she wished to remain at St Bernard's. It found that the respondent continued to send vacancy lists during the notice period and that Mr Newton had taken account of the claimant's length of service and previous good record, while balancing those matters against the risk of losing the school contract if the client could not be satisfied.

Applying section 98 of the Employment Rights Act 1996 and the range of reasonable responses approach, with reference to authorities including Dobie v Burns International Security Services and Jafri v Secretary of State for Justice, the tribunal held that the dismissal was fair. It concluded that the respondent acted reasonably in treating the client request and the failed search for alternatives as sufficient reason to dismiss, and that the procedure and decision were both within the range open to a reasonable employer. The unfair dismissal claim was therefore dismissed and no monetary award was made.