Mr O Viorel v SBFM Ltd: 4100005/2024
JUDGMENT
The judgment of the Tribunal is that the claimant was not unfairly dismissed by the respondent. The claim is dismissed.REASONS
[1]The judgment in this case was issued orally at the conclusion of the hearing with reasons and confirmed in writing on 21 March 2024. On 26 March 2024 the claimant requested written reasons. These are provided below. These repeat and expand upon the oral reasons given at the hearing.Background
[2]The claimant submitted a claim to the Tribunal in which he claimed he had been unfairly dismissed by the respondent. The respondent submitted a E.T. Z4 (WR) response in which they denied the claim. It was their position that the claimant had been dismissed for some other substantial reason and that the dismissal was procedurally and substantively fair. At the hearing evidence was led on behalf of the respondent from John McDougall one of their managers. Both the respondent’s representative and their witness attended the hearing remotely via cvp. The claimant gave evidence on his own behalf. The claimant participated in the hearing and gave his evidence with the assistance of a Romanian interpreter. The claimant attended in person and the interpreter attended by cvp. A joint bundle of productions was lodged and the documents in this are referred to by page number below. On the basis of the evidence and productions I found the relevant factual background to be as follows: Findings in fact[3]The claimant commenced work for one of the respondent’s predecessor companies in or about 2018. The claimant worked previously for a company called Atlas who were a cleaning company and they provided his services to a company called PureGym Limited who owned various gyms in the Aberdeen area. His employment transferred from Atlas to the respondent under TUPE in or about September 2022 when the respondent took over the cleaning contract with PureGym Limited. A copy of the claimant’s original signed contract of employment was lodged (p2-[4]together with a copy of the letters sent to the claimant when the respondent took over (p5-8). Neither document makes any specific reference to what would happen if a customer required an employee to be removed from a job or location. The claimant was aware that the relationship between his employer ana PureGym was that of cleaning company and customer. 4. The claimant worked a nightshift cleaning between approximately 1.30 am arid 6.00 am.[5]Prior to the transfer to the respondent an incident had taken place where a personal trainer who worked for PureGym had complained about the claimant’s behaviour towards her. At that time the claimant had been working as a cleaner at a gym operated by PureGym in Shiprow, Aberdeen. It is not clear what investigation was carried out by PureGym or the claimant’s then employers at the time of the incident The claimant was suspended for a short period. The claimant requested that his then employers asked PureGym to check their CCTV in order to establish the truth of the incident but it appears this was never done. Instead, the matter was resolved practically by arranging for the claimant to swap with a colleague who worked at the PureGym in Kittybrewster and worked similar shifts. This meant there would be no contact between the claimant and the person who had complained about him. The claimant thereafter continued to work at the PureGym in Kittybrewster and was working at PureGym, Kittybrewster when the respondent took over the contract in September 2022.[6]The respondent were happy with the claimant’s work and there were no significant issues between the claimant and his employers.[7]On 29 May 2023 the respondent received an email from Aidan Robertson the manager of PureGym in Shiprow. It was sent to Jusinei Caberlin who was the claimant’s line manager. It was also copied to Donald Thomson, PureGym’s cluster manager for the gyms operated by them in the Aberdeen area. It stated: .20 “Hope this finds you well. Previously when Viorel was working with Atlas within PureGym Shiprow there was an advancement from himself towards a personal trainer which made this trainer very uncomfortable. These actions resulted in an investigation by Atlas and PureGym and it was agreed that Viorel would not work there any more and since been transferred to Kittybrewster. The trainer then left PureGym but is now returning to PureGym Kittybrewster as of 29th of May. Meaning will need Viorel transferred out of club again.” On 6 June 2023 Mr Thomson the cluster manager for PureGym sent a chaser email to the claimant’s line manager which was also copied to the respondent’s area manager Mr McDougall.[8]On 22 June Mr Caberlin met with the claimant with a translator also present. A minute of this meeting was lodged which I considered to be accurate (pl 2-14). The claimant was advised that he was being suspended as a result of the request from PureGym that he be removed from their site at Kittybrewster. The respondent’s aim at that time was to thereafter try to negotiate with PureGym either for the claimant to be allowed to return to Kittybrewster or to be moved somewhere else. The claimant was told the reason for the suspension and that it was due to the request from PureGym. He was asked about his availability to do other work. He was asked whether he drove. He was asked what hours he was looking for. He explained that he was looking for work around Aberdeen and was only available for the same hours he currently worked at Kittybrewster since he had other jobs. He was told that his manager would see if there were any vacancies around Aberdeen and let him know. The claimant's suspension was confirmed in an email sent to him on 22 June (p15).[9]Subsequent to this Mr McDougall of the respondent sought to discuss matters with Mr Thomson of PureGym. During these discussions he was advised that PureGym were not prepared to have the claimant at any of their sites in Aberdeen. Mr McDougall also spoke to Mr Robertson the manager at Kittybrewster to see if there was any way that he would have the claimant back. Unfortunately PureGym were adamant that they would not.[10]During this period the claimant tried to contact the respondent’s office in Aberdeen on various occasions. He was told on each occasion that the only person he should speak to was his area manager, Mr Caberlin. At that time the claimant had decided that his area manager was being unhelpful and had blocked the area manager from contacting him through WhatsApp which was the usual method by which his manager contacted him. The respondent wrote to the claimant confirming that all contact should be via his area manager. He was told that his area manager and other members of management were trying to find other work for him.[11]In or about August the claimant received a text to advise that shifts were available at PureGym in Rubislaw. It is unclear whether or not he contacted the respondent about this but in any event when the respondent contacted PureGym they were advised that they were still not prepared to have the claimant on any of their premises. The text had been sent out to the claimant and to others on the respondent’s books automatically. PureGym were not prepared to have the claimant work for them at Rubislaw or anywhere else.[12]The situation during the summer was that there were no other jobs in the Aberdeen area which had the hours which the claimant was able and willing to work. The claimant was unable to work other hours because he had other jobs which he did during the day.[13]The claimant was invited to a further formal meeting with the respondent on 19 September. This required to be rescheduled from the original time to 8.30 in the morning since the claimant was working for another employer at the time originally fixed. The claimant duly attended this meeting which was attended by Mr McDougall on behalf of the respondent. A minute of this meeting was lodged which I considered to be an accurate record of what took place (p22-25). At this meeting the respondent explained the current situation to the claimant. There was a brief discussion around the incident The claimant advised that the PureGym personal trainers had been out drinking and come back to PureGym while he was working and that he had hugged one of them when saying goodbyes and that the trainer had reported him. He said he had been suspended for one week and then returned being transferred to Kittybrewster. The respondent explained that they were not dealing with 25 the incident as such but that PureGym had now requested that he be removed from working at any PureGym. The respondent indicated that they would try to find the claimant something else. The claimant asked if they would appeal once again to PureGym and Mr McDougall agreed to do this. Once again the claimant indicated that he was looking for night work for four to five hours each night as he had another job during the day. He wanted four to five hours between 10.00pm and 6.00am. He was willing to travel up to 20 minutes’ driving from his home address. The claimant was advised that should the appeal to PureGym be declined and if they were unable to find a suitable alternative position they would have no other option than to terminate the claimant’s contract under third party pressure namely PureGym requesting that he be removed...[14]Subsequent to this Mr McDougall spoke again to Mr Robertson and to Mr Thomson of PureGym. He also sent an email to them on 22 September confirming that ‘Viorel wished to appeal their decision’. PureGym confirmed to Mr McDougall verbally and in writing that they were not prepared to move on the matter and that they were not prepared to have the claimant work at any PureGym in Aberdeen. The email confirming this was lodged (p26). It stated: “Due to the nature of the complaint we can’t overturn the decision under safety for the personal trainer.”[15]The respondent’s Mr McDougall wrote to the claimant on 27 September confirming the position. They stated that as the option of the claimant returning to site was no longer available they needed to turn their attention to establishing if there were any other employment opportunities within SBFM. The claimant was told to refer to their website (SBFM Careers page) for vacancies. They indicated that the only two vacancies they could see which met his criteria were with PureGym and were therefore not available to the claimant. The claimant himself checked the website subsequent to this. The only jobs which were available in Aberdeen which would suit him were with PureGym. There were no other cleaning jobs available from the company which fell in with his requirements. The letter to the claimant was lodged (p28-29).[16]The claimant was invited to a further meeting which took place on i5 5 October 2023. It was noted that the respondent had been trying to find the claimant a position on another contract but there were none. The claimant asked why he could not work, at PureGym and was told that the respondent had appealed the decision to PureGym but unfortunately PureGym were not prepared to change their minds. The claimant was advised that given that PureGym were not prepared to change their mind and given that there are no other jobs available to the claimant then he was being given one week’s notice of termination. The claimant was told that there was no issue in him applying for further vacancies that come up with the respondent or indeed for a reference. The minute of this meeting was lodged (p30-33), I considered this to be an accurate record of what took place.[17]The claimant’s dismissal was confirmed in a letter sent to the claimant dated 6 October (p34). The claimant submitted an appeal. His letter of appeal was lodged (p35-38). In his appeal he referred to various other incidents which had taken place between him and his line manager. He stated that he had not been culpable in respect of the original incident and that the original incident had been dealt with. The claimant was invited to an appeal hearing which took place on 6 November 2023. Subsequent to the appeal hearing the respondent’s Abigail Richards the Account Director who had conducted the appeal wrote to the claimant with the outcome on 22 November 2023. The outcome letter referred to the reason for dismissal which was that PureGym were not prepared to have the claimant back on any of their premises and that the respondent had been unable to find an alternative job which suited the claimant. This letter was lodged (p42-43). Observations on the evidence[18]Generally speaking there was very little difference between the evidence of the claimant and Mr McDougall regarding the salient points relating to the case. At various points the claimant sought to raise previous issues which he had had with his line manager with Mr McDougall. Mr McDougall’s position was essentially that he knew nothing about these. The decision to dismiss had been taken by Mr McDougal! with no input from the claimant’s line manager. The respondent had absolutely no issue with the claimant’s work and at the end of the hearing Mr McDougal! specifically made the point that the claimant was very welcome io apply for any vacancies they had and that they would be happy to have him back if there was any suitable job for him. In his own evidence the claimant spoke very briefly about his concerns with his area manager and I allowed this evidence notwithstanding the fact there was nothing on record regarding it. At the end of the day I have not made any detailed factual findings since the most that could be said was that there had been a previous incident whereby the claimant had fallen out with his line manager since he felt his line manager was wanting him to do extra work for nothing.[19]The claimant also initially made the point that he felt his line manager should have been in more contact with him during the period immediately after his suspension but it was dear from the evidence that at this point the claimant had actually blocked his line manager from telephoning him. The respondent had written to the claimant insisting that he removed this block on calls so that his line manager could speak to him again. The respondent’s representative advised that it had been his original intention to call the claimant’s former line manager as a witness but unfortunately he had advised the day before that he was unavailable. He now worked for another employer and in the circumstances they were content to proceed without him.Issues
[20]The sole claim being made by the claimant was a claim of unfair dismissal. The claimant sought reinstatement failing which compensation. Discussion and Decision[21]The concept of unfair dismissal is a statutory one and the law is set out in Part X of the Employment Rights Act 1996.. Section 98 of the Employment Rights Act states: “(1) In determining for the purposes of this part whether the dismissal of an employee is fair or unfair it is for the employer to show(a) the reason (or, if more than one, the principal reason) for the dismissal, and(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.”[22]In this case it is noteworthy that the respondent did not seek to rely on any of the reasons given in section 98(2). It was not their position that the claimant’s dismissal was in any way due to the claimant’s conduct or capability or indeed any of the other reasons set out in section 98(2). Instead it was their position from the outset that the dismissal was fair in that it was for “some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.” In this case it was their position that the reason for the claimant’s dismissal was third party pressure. Essentially it was their position that they had had no option but to dismiss the claimant because of third party pressure from their customer “PureGym”. 23. to this case the first task of the Tribunal was to determine whether or not third party pressure was in fact the reason for dismissal. In this case I had absolutely no doubt that it was. Whilst the claimant sought to raise, and thereafter defend himself in respect of various issues which he claimed had arisen between himself and his line manager it was clear to me that none of these had anything whatsoever to do with his dismissal. The position was that the decision to dismiss had been taken by Mr McDougall. Mr McDougall was unaware of any of these incidents. In any event the incidents appeared to be nothing more than the friction which often occurs between an employee and line manager, ft was clear to me from the evidence that there had been third party pressure from PureGym. This was one of these situations where they had clearly given an ultimatum. As far back as the case of Dobie v Burns International Security Services (UK) Limited [1984] ICR 812 CA, the Court of Appeal made it clear that such an ultimatum from a third party can amount to some other substantial reason entitling the employer to dismiss. It is clear to me that in this case such an ultimatum was clearly given. It was initially given in writing on 29 May. It was then followed up by a subsequent, email in June, ft was also confirmed orally by Mr Thomson and Mr Robertson to Mr McDougall.[24]It was clear that for whatever reason whilst PureGym had initially been happy to simply insist the claimant be moved to another gym where he was unlikely to come across the person who had complained about him they had subsequently changed their mind. There was some suggestion that this was because the personal trainer involved now had a more peripatetic role but I have not made any detailed findings in relation to this since at the end of the day PureGym’s reasons for making their decision are not something which I need to enquire into further. PureGym were not the claimant’s employer. If they were, and were seeking to dismiss the claimant then such a claim for unfair dismissal would have an entirely different course. The Tribunal would be entitled to look very carefully at PureGym's decision making. We would require to took at the procedure they adopted. We would require to form a view as to whether they had carried out a proper investigation and whether the decision to dismiss was within the band of reasonableness. That is not the position here. SBFM Limited are the employer and I am solely entitled to took at their decision making.[25]As noted above, I considered it to be fully established that the reason for dismissal in this case was third party pressure. I am then required to look at the issue of reasonableness. The test is whether the course of action taken by the employer is within the band of responses of a reasonable employer to the situation in which they found themselves. In a case such as this where a third party has given an ultimatum I consider that any reasonable employer would take two steps before considering dismissing an employee. The first step would be to try to get the third party to change their mind. In this case I note from the evidence that the respondent did seek to get the employer to change their mind on several occasions. The employer contacted PureGym at the time, they then waited a bit to see if their position would change, they sought to have PureGym agree that the claimant could attend one of the other gyms in the Aberdeen cluster if he could not attend Kittybrewster. Mr McDougall personally spoke to Mr Robertson and Mr Thomson. He then followed this up with an email. It was clear from Mr McDougall’s evidence that he took all of the steps which he felt he reasonably could take with a view to getting PureGym to change their mind. Unfortunately they refused to do this.[26]The second step which a reasonable employer would be required to take would be to see if there were any other roles which the claimant could be deployed to which were available. It is clear to me that the respondent did try to do this. The claimant’s own position in evidence was that he had checked their website and the only jobs in Aberdeen which would suit him were ones with PureGym. It is clear to me that Mr McDougall would have welcomed the opportunity to redeploy the claimant somewhere else. They had absolutely no issues with the claimant’s work.[27]In all the circumstances while I can understand that the claimant feels aggrieved that he has been essentially dismissed for a matter where he considers he was not in the wrong it is clear that given the type of contract he worked under the risk of being dismissed because a client no longer wanted him on their premises was one which he agreed to. It is clear that workers in this type of contract are vulnerable in this kind of situation but there was no suggestion at all from the claimant at any stage that he did not understand that he was working for a cleaning agency who cleaned buildings belonging to and operated by other people. In those circumstances the obligations on his employer to behave reasonably may still mean that an employee’s dismissal is found to be fair in circumstances where he considers the incidents which prompted dismissal was not his fault.[28]It appears to be clear that there was not much else that the respondent could have done in the situation they found themselves in. Given the nature of the contractual relationship they were not in a position to insist that PureGym carry out a further investigation of this incident or indeed any investigation at all. In all the circumstances therefore the dismissal is fair in terms of section 98 of the Employment Rights Act 1996 and the claimant’s claim is therefore dismissed.