Claimant v Evolve Housing + Support
Outcome
Individual claims
Claimant did not have the requisite two years continuous employment required under s.108(1) ERA. Continuity of employment began on 15 February 2023 with previous periods being bank work and fixed term contracts. Tribunal lacked jurisdiction to hear this claim.
Claimant failed to prove that the principal reason for dismissal was protected disclosures. The tribunal found she was dismissed for misconduct: failing to conduct required hourly patrols, falsifying records, and failing to alert management to a co-worker's absence while already on a final written warning for similar conduct two weeks earlier. No evidence suggested whistleblowing was the reason for dismissal.
Whilst the tribunal accepted certain disclosures about agency staff working back-to-back shifts and sleeping on duty may have been protected disclosures, the claimant did not prove these were the reason or principal reason for her dismissal. The dismissal followed clear misconduct relating to patrols and failure to follow procedure.
Facts
The claimant worked for a homelessness charity in various capacities including bank work, fixed term contracts, and finally as a permanent night concierge from 15 February 2023. She was dismissed on 3 January 2024 following two disciplinary incidents. The first in September 2023 resulted in a final written warning for failing to complete hourly patrols and falsifying handover documents. The second incident in November 2023 involved failing to conduct physical patrols when a co-worker fell asleep, and failing to notify management. She was dismissed while on a final written warning. The claimant alleged she raised concerns about agency staff working excessive hours and sleeping on duty.
Decision
The tribunal dismissed both claims. The ordinary unfair dismissal claim failed for lack of jurisdiction as the claimant did not have two years continuous employment, having only been a permanent employee from 15 February 2023. The automatic unfair dismissal claim failed because the claimant did not prove whistleblowing was the reason for dismissal. The tribunal found the dismissal was for genuine misconduct relating to failure to conduct patrols and follow procedure while already on a final written warning.
Practical note
A claimant pursuing automatic unfair dismissal for whistleblowing bears the burden of proving the protected disclosure was the principal reason for dismissal, and raising concerns during a disciplinary process that has already commenced makes it unlikely those disclosures caused the dismissal.
Legal authorities cited
Statutes
Case details
- Case number
- 2302593/2024
- Decision date
- 17 January 2025
- Hearing type
- full merits
- Hearing days
- 3
- Classification
- contested
Respondent
- Sector
- charity
- Represented
- Yes
- Rep type
- barrister
Employment details
- Role
- Supported Housing Night Concierge
- Service
- 10 months
Claimant representation
- Represented
- No