Case 3202080/2019 · Employment Tribunal
Mr D Salazar Restrepo v Atlantic Cleaning Services Limited — 2020
- Case reference
- 3202080/2019
- Decision date
- 12 March 2020
- Jurisdiction
- England & Wales
- Judge
- Employment Judge Davidson Members
- Venue
- East London Hearing Centre
- Panel members
- Mr T Burrows, Mr D Ross
Parties
2 namedClaimant
Mr D Salazar Restrepo
Respondent
Key findings
Tribunal's reasoningMr D Salazar Restrepo transferred to Atlantic Cleaning Services Ltd in April 2018 under TUPE as a cleaner/supervisor at Gatehouse School. The respondent reduced hours after the transfer, introduced EziTracker in late 2018, issued a written warning on 5 November 2018 for failing to co-ordinate the team during the holiday period, and later issued a final written warning after the claimant gave notice on 1 May 2019 that he could not work the afternoon shift following an accident the previous day. The tribunal noted that both warnings were issued without a hearing or investigation.
After a client complaint on 7 June 2019, the respondent removed the claimant from the school site on 19 June 2019 and offered alternative work on less favourable terms. The tribunal found that the respondent acted because, under pressure and direction from the client, it decided the claimant no longer had the client's confidence. It held that the school assignment ended, but the employment relationship continued and the respondent had a duty to look for other work. The claimant was justified in refusing the first alternative role, but when a further position was offered in August 2019 that substantially replicated the school terms and conditions, he did not pursue it.
The tribunal dismissed the unfair dismissal complaint, holding that the claimant had not been dismissed when removed from the school and that the reason for the change was some other substantial reason, not misconduct or poor performance. It rejected the claimant's reliance on Hogg v Dover College [1990] ECR 39, finding that the respondent had not unilaterally imposed a new contract. It also dismissed the automatic unfair dismissal complaint based on trade union membership, finding no evidence of hostility to the union and accepting that the warning was prompted by the claimant's late notice of absence. The constructive dismissal complaint was also dismissed because removal from site was not a breach of contract or of the implied duty of trust and confidence, and the claimant had affirmed the contract in the 27 June 2019 union letter.
Claims and outcomes
3 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Unfair dismissal | The tribunal found that removal from the Gatehouse School site was not a dismissal. It held that the assignment ended because the respondent, under pressure and direction from the client, decided the claimant no longer had the client's confidence, and that the reason was some other substantial reason rather than misconduct or poor performance. | Dismissed | — | — |
| Trade union | The tribunal found no evidence of hostility to trade union membership. It accepted that the disciplinary warning after the April/May 2019 absence arose from the claimant's failure to give the required three hours' notice, not from the union's involvement. | Dismissed | — | — |
| Constructive dismissal | The tribunal held that removal from site was not a breach of contract and not a breach of the implied duty of trust and confidence. It also found that the claimant affirmed the contract in the 27 June 2019 union correspondence and later did not take up the second offer of alternative work. | Dismissed | — | — |
Legal tests applied
3 references- Hogg v Dover College [1990] ECR 39
- implied duty of trust and confidence
- some other substantial reason
Official outcome judgment PDF
Gov.uk primary recordThe official judgment PDF on gov.uk contains the tribunal's outcome, reasoning, and any remedy details. Where this page does not yet show extracted outcomes for every claim, use the PDF as the authoritative source.
Published on gov.uk under the Open Government Licence v3.0.
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