Member M McAllister Tribunal Member J McElwee Mr D Cornish v City Facilities Management (UK) Ltd — 2021

Mr Cornish transferred to City Facilities Management (UK) Ltd on 1 April 2019 after a relevant TUPE transfer from Westway. Before the transfer he worked mainly as a Combustion Engineer on reactive gas maintenance, with some gas PPM work and no FGAS PPM work. After the transfer the respondent operated the Marks and Spencer contract differently, wanted multi-skilled engineers, and from September 2019 allocated him stores for which the tribunal found the large majority of his work would be FGAS PPM. The claimant resigned on 23 September 2019 and began work with CMS on 1 October 2019.

The tribunal dismissed the separate constructive unfair dismissal claim under section 94 of the Employment Rights Act 1996. It found the contract allowed reasonable changes to duties and terms, that the respondent had a staffing resource issue, and that requiring the claimant to carry out FGAS PPM work he was qualified to perform was reasonable and supported by reasonable and proper cause. It therefore found no repudiatory breach of express contract terms or of the implied term of trust and confidence.

The TUPE claim succeeded. The tribunal found the change from mainly reactive Combustion Engineer work to a role in which FGAS PPM formed a large majority of the work was a substantial change in working conditions to the claimant's material detriment under regulation 4(9). It accepted that the work was less skilled and less interesting for the claimant, reduced the use of his gas skills, increased the likelihood of out-of-hours work, and was not communicated as a short fixed-term arrangement. It found the principal reason for the change was the transfer, including the respondent's different business model and its attempt to fit the claimant into its own structure.

The tribunal rejected the respondent's ETO defence and found the dismissal unfair under regulation 7. It considered that the respondent had in effect sought to harmonise the claimant's role with its structure, had not appreciated what role and contract had transferred, and had not established changes in the workforce for the purposes of the regulation. The redundancy claim was dismissed because there was no reduction in staff requirement; the respondent needed more staff, and some of the claimant's previous work remained.

For remedy, the tribunal made a basic award of £3,937.50 based on the claimant's age, six years' continuous service, and the statutory weekly cap of £525. It awarded one year's net earnings loss of £18,695.04, calculated as £359.92 per week, plus £500 for loss of statutory rights, making a compensatory award of £19,195.04. The tribunal found the claimant had mitigated his loss and declined to reduce the award because he had raised a grievance, had been told there was no alternative to the work required, and moved to CMS to do the work he wished to do. The total award was £23,132.54.