Mr Cetin Avsar v Wilson James Ltd
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Eady DBE,Mrs Justice Eady |
| Judgment Date | 15 December 2020 |
| Neutral Citation | [2020] EWHC 3412 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: QA-2020-000216 |
| Date | 15 December 2020 |
[2020] EWHC 3412 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Eady
Case No: QA-2020-000216
Mr Changez Khan, counsel (instructed by Whitechapel Advice Service Ltd) for the Claimant/Appellant
Mr Gethin Thomas, counsel (instructed by Trowers & Hamlins LLP) for the Defendant/Respondent
Hearing date: 10 December 2020
Approved Judgment
The Honourable
Introduction
The Claimant is employed by the Defendant as a security guard. He is currently suspended due to what is said to be a concern that his views on outsourcing may give rise to a conflict of interest in his employment by the Defendant, which provides contracted out security services. The Claimant contends that the Defendant has acted in actual and anticipatory breach of contract and seeks an urgent interim injunction to stop any continuing breach.
The Claimant's application was heard at the Central London County Court, on 24 November 2020, when Her Honour Judge Baucher refused to grant the relief sought. The Claimant now applies for permission to appeal against Judge Baucher's decision.
The application for permission to appeal initially came before the Honourable Mrs Justice Foster on 25 November 2020, but was then adjourned to be listed before me on 10 December 2020, with the direction that the hearing of the appeal would follow if permission was granted. It was further directed that an internal hearing relating to the Claimant's employment would not take place until the determination of this application or further Order.
In pursuing his application, the Claimant asks that I set aside the decision of the lower Court and grant an interim injunction requiring that the Defendant lift his current suspension and be restrained from pursuing detrimental action against him, whether in the guise of a probation or disciplinary process, in relation to the matters set out in the Defendant's letter of 10 November 2020.
I have heard submissions on all points from both sides, and taken into account the skeleton arguments prepared by counsel in advance of the hearing; I am grateful to the legal teams for their assistance. I have also had regard to the documentation filed on behalf of the Claimant and the Defendant, which includes statements from the Claimant and Mr Elia, head organiser of the United Voices of the World trade union (“the UVW”) and from Mr Channer, Chief of Staff for the Defendant.
Given the on-going need to reduce transmission of Covid-19, and with the agreement of the parties and it being an effective means of ensuring justice in this matter, this hearing has taken place remotely by Microsoft Teams. These have, however, remained public proceedings, and the hearing and details for access were published in the cause list, thus ensuring the principle of open justice.
The Factual Background
The Parties
The Claimant works as a security guard. In his statement, the Claimant explains that, since leaving education in 1988, he has been in continuous employment (save for a short period after he was made redundant in early 2018) and has never been dismissed for misconduct and has never claimed unemployment benefits. He says that he lives with his teenage son, who is financially dependent upon him, and that they would suffer significantly if he were to lose his employment, not least as he fears he would find it difficult to obtain another job if now dismissed by the Defendant.
The Claimant is a member of the UVW. From the statement of Mr Elia, I understand that the UVW is an independent trade union with a number of members who are cleaners and security guards employed by contractors to work for various client institutions. In his previous employment, the Claimant took an active part in a campaign organised by the UVW relating to the outsourcing of security guards and he has joined with others in pursuing Employment Tribunal (“ET”) proceedings against the client, complaining that the disparity of terms as between in-house and outsourced workers amounts to indirect race discrimination. I am told that those proceedings are on-going and there is a preliminary hearing listed for January 2021.
The Defendant is a company within the Wilson James Group (“the Group”), which specialises in the provision of security, aviation and construction logistics services. In his statement, Mr Channer explains that the Group employs some 5,400 employees, based primarily in the UK. The Francis Crick Institute is a client of the Defendant and Mr Channer states that there are particular sensitivities associated with that client as the activities carried out on-site are of a sensitive and confidential nature. Although the UVW is not recognised by the Defendant, I am told that it has recognition agreements with other trade unions and Mr Channer says that the Defendant is fully supportive of its employees being members of trade unions and taking part in lawful trade union activities.
The Defendant's Offer of Employment to the Claimant
In August 2020, the Claimant applied for a position with the Defendant as a security officer. After an interview, on 19 August 2020, the Defendant emailed the Claimant with an initial offer of employment at the Francis Crick Institute, which was stated to be subject to satisfactory completion of standard employment checks and security vetting. Mr Channer explains that this security vetting complied with BS7858 (as set by the British Standards Institute for those involved in the security sector), which requires employment and credit checks going back five years.
On 11 September 2020, an email was sent to the Claimant by Agenda Screening Services, pre-employment screening partner of the Francis Crick Institute, informing the Claimant that his pre-employment screening had been completed, saying that “ The Crick will make direct contact should anything further be required”. On 28 September 2020, the security operations manager of the Francis Crick Institute emailed the Claimant to confirm he had cleared the Defendant's security screening and his offer of employment was now formalised; he was invited to resign his previous employment so he could start his new post. On 30 September 2020, the Claimant gave two weeks' notice of resignation from his previous employment and, on 19 October 2020, he started with the Defendant, working as a security officer at the Francis Crick Institute.
The Contractual Position
As is common ground, the Claimant's employment was subject (relevantly) to the following express terms and conditions (as set out in the Defendant's offer letter of 19 August 2020):
“3. Place of Work
3.1 Your place of work will be … The Francis Crick Institute ….
3.2 The Company reserves the right to change your location of work if the need should arise (including where a client has asked for your removal). All reasonable efforts will be made by the Company to place you at locations or Site Assignments within reasonable travelling distance of your home or place of residence and your current place of work.
3.3 Your employment at any site location always remains subject to client approval. Should the client request your removal from site for any reason, the Company will take whatever action is appropriate in the circumstances. Although we will take all possible measures to try to avoid it, including looking for redeployment to another site, if we cannot find a suitable alternative role for you this may lead to your dismissal. …
11. Probation period
11.1 Your appointment is subject to a probation period of up to 3 months, during which time you will be required to demonstrate to the Company's satisfaction, your suitability for the position in which you are employed.
11.2 The organisation reserves the right to extend this period as appropriate.
11.3 You will be notified in writing once you have successfully passed your probation period.
12. Notice to terminate
12.1 This employment may be terminated by you or the Company giving notice to the other party as follows: [one week's notice after four weeks of employment]
…
12.3 The organisation reserves the right to pay you a payment equal to the remuneration due for the relevant period of notice rather than requiring you to work your notice period.
12.4 The organisation reserves the right to require you not to attend the workplace during the notice period. The contract of employment will remain in force during this period and you are not permitted to take up employment elsewhere during this period.
12.5 Nothing in this agreement prevents the Company from terminating your employment either summarily or otherwise in the event of any serious breach by you of the terms of your employment or in the event of any act or acts of gross misconduct by you.
…
14. Policies and Procedures
14.1 All employee policies and procedures applicable to your employment can be found on the Wilson James Intranet. They are for guidance only and do not form part of your contract of employment. …”
As stated by clause 11 of those terms and conditions, the Claimant's employment was subject to a probationary period. The Defendant's probation policy provides (relevantly) as follows:
“1.0 Introduction
…
It is the organisation's policy to operate probationary periods for all new employees.
This policy is intended to allow both the employee and the employee's Line Manager to assess objectively whether the employee is suitable for the role. The organisation believes that the use of probationary...
To continue reading
Request your trial