Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2012/01860_11IT.html
Cite as: [2012] NIIT 01860_11IT, [2012] NIIT 1860_11IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1860/11

CLAIMANT: David Seddon

RESPONDENT: G4S Secure Solutions (UK) Limited

DECISION

The unanimous decision of the tribunal is that the claimant was not unfairly dismissed.

Constitution of Tribunal:

Chairman: Mr S M P Cross

Panel Members: Mrs S Doran

Mr J Martin

Appearances:

The claimant was represented by Ms McClelland.

The respondent was represented by Ms Walker of the respondent company.

Findings of Fact

1. The claimant was employed by the respondent as a security officer at the HMRC building at Carne House Belfast, a building guarded by the respondent. The office was guarded throughout the day and night by teams of the respondent’s employees working in pairs. The claimant had for a number of months before the incident described below, worked with a colleague, William Higgins. One of the other two man teams that worked on this site included a Mr Angus Beggs.

2. On 28 April 2011 the claimant made a remark to Mr Beggs, along the lines of, “Hello Angus I thought you were dead.” This was not only heard by
Mr Beggs, but by an independent witness, Ms Chrissi Boyd. Subsequently,
Mr Beggs stated to the respondent that the claimant was in the habit of making remarks of that nature to him. This allegation was supported by the evidence of Mr McNiece who stated that he heard the claimant make a similar remark along the lines of, “you’re not dead yet Angus.” This remark was made on 7 May.

3. On the night of the 28 April an incident occurred whilst the team of Higgins and the claimant were on duty at the site. Damage was occasioned to certain belongings of Mr Beggs and other security guards on site. Each security man had a personal locker in the guardroom, into which he was able to put his mug and tea or coffee and any book or other materials that he had of a personal nature. On the night in question, somebody had gained access to these lockers, without breaking the padlocks and had damaged mugs and torn books and cut wires for personal music players. The tribunal was shown photographic evidence of this damage which was discovered by the shift that took over from the claimant and Mr Higgins. The tribunal heard that the lockers were heavy and would require two people to move them away from the wall to gain access at the back.

4. As a result of this incident the respondent set up an investigation under
Mr Keith D’Arcy, an Operations Manager in the respondent company and entitled under the respondent’s procedures to conduct such enquiries. A letter was written to the claimant and Mr Higgins suspending them from
16 May 2011. A meeting was held on 18 May 2011 and the claimant signed a disclaimer form stating that he was happy to continue with the investigatory meeting without any representation from a work colleague or union official. The first allegation which was put to the claimant concerned the comments on 28 April made by the claimant to Mr Beggs, stating that he was dead. The second allegation concerned the damage to the private property of the other security men, which had occurred when the lockers had been broken into, as described above. The third allegation concerned certain newspaper cuttings of a sexual nature and referring to gay chatlines, that it was alleged the claimant, or Mr Higgins, placed in the vents of the red locker which belonged to Mr Beggs. In this connection the claimant admitted that he had seen
Mr Higgins, write something on a tobacco pouch and put it in the locker. He also admitted that he had seen Mr Higgins place newspaper cuttings in the front air vent of Mr Begg’s locker. The final allegation concerned more mundane matters such as the disappearance of a note cancelling the milk, which should have been left out for the milkman but was somehow misplaced, with the result that milk was delivered when it was not required. There was also an allegation concerning handover sheets which should have been completed by one security team on handing over to the next team, which had not been properly completed, or had been ripped. The claimant said he had seen Mr Higgins damage or Tippex handover sheets and tried to stop him doing this. He stated that he knew that he should have said something to the management concerning this but that he failed to do so. The claimant informed Mr D’Arcy that he did all the patrols and was out of the control room for lengthy periods during their shift. Mr Higgins never left the room to do patrols and thus had the opportunity to vandalise the property.

5. After Mr D’Arcy had completed this investigation, during which he interviewed the claimant and obtained the admissions referred to above, he told the claimant that the matter would go to a disciplinary hearing. The disciplinary hearing was duly convened by Ms C Nesbitt and the claimant appeared with Mr Harry Hannah, a work colleague. The various allegations referred to above were put to the claimant who stated his side of the matter, but at the end of the hearing the decision of Ms Nesbitt was that the claimant's contract should be terminated with immediate effect for gross misconduct. He received written notification of this decision on 31 May 2011.

6. The reasons for the dismissal were as follows:-

(a) That he addressed a colleague in an inappropriate manner that is not acceptable behaviour in the workplace. This was reference to the comments to Mr Beggs referring to him being not dead.

(b) Whilst on duty in the control room, the contents in his colleagues’ lockers were destroyed or damaged.

(c) While on duty in the control room he witnessed his colleague William Higgins placing inappropriate paper cuttings into a colleague’s locker causing a breach of the company's equal opportunities policy, which he failed to report to his line manager.

(d) That he deliberately destroyed notes and messages resulting in messages not been passed to the relevant parties. This was a reference to the milk not being cancelled.

(e) Finally, the falsification of the company handover sheets was referred to but the respondent appears to have withdrawn this allegation prior to the disciplinary hearing.

7. The claimant exercised his right to appeal against this disciplinary finding. This was heard on 24 June 2011 and 22 July 2011. The hearing was conducted by Mr Braden-Astbury. Despite the appeal taking some time and going painstakingly through the history of the events, the result was that the appeal was dismissed. The respondent wrote to the claimant on 28 July 2011 confirming the original decision to terminate the claimant's employment on the grounds of gross misconduct. The claimant did have a right to a second appeal against that decision but he did not avail himself of this right. The claimant informed the tribunal that he never received the letter of 28 July, informing him that his first appeal had been dismissed and was therefore unaware that he had a second appeal. The tribunal find this to be an unlikely situation, as if the claimant had not heard the result of his appeal within a reasonable length of time he would have contacted the company and found out what had happened and at that stage would have received a further copy of the letter of 28 July. The tribunal find it is not believable that the claimant merely ignored the fact that he never heard the result of his appeal.

8. The claimant in his application to the tribunal also claimed that certain wages were unpaid to him at his termination. During the hearing this matter was discussed and it became apparent that all wages due to the claimant had indeed been paid and the claimant withdrew that aspect of his claim.

The Law

9. Under Article 126 of the Employment Rights (Northern Ireland) Order 1996, (hereinafter called “the 1996 Order”) an employee has a right not to be unfairly dismissed by his employer. Article 130 of the 1996 Order states, that the onus is on the employer to show that the reason (or the principal reason if there are more than one reason), for the dismissal falls within Article 130(2), or is for some other substantial reason. In this case the respondent claims that the reason for the dismissal is the conduct of the claimant. This reason falls within Article 130(2)(b). When the respondent has discharged this requirement, then under Article 130(4) “the determination of the question whether the dismissal is fair or unfair, (having regard to the reason shown by the employer)-

(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case.”

The burden of proof in this regard is neutral and the tribunal has to consider all the evidence of the parties, to ascertain whether the disciplinary enquires and hearings were conducted in a fair manner toward the claimant.

10. The leading case, which assists the tribunal in cases of this nature, is British Home Stores v Burchell 1978 [IRLR] 379, in which the EAT laid down the test of fairness in a case of investigation into the employee’s conduct. This test, which has been followed by courts and tribunals, lays down certain guidelines regarding the employer’s belief at the time of the dismissal. The employer, in a case of this type, must show to the tribunal that he “entertained a reasonable suspicion, amounting to a belief in the guilt of the employee of that misconduct at that time”. Arnold J states in his judgment in the Burchell case, after the above quoted words:-

“First of all there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further.”

11. The Burchell and other decisions make it very clear to tribunals that they must not impose their own decision on the parties, in place of a decision that has been reached by an employer who has observed the guidelines stated above.

12. Once the tribunal has made the decision, that the process of the enquiry and disciplinary and appeal hearings have been conducted fairly, it must decide whether the decision of the employer, to dismiss the employee is within a band of reasonable responses, that a reasonable employer might be expected to adopt, if faced with a disciplinary problem such as the one before this tribunal.

Decision of the tribunal

13. The tribunal is unanimous in its decision that the claimant was not unfairly dismissed. The tribunal hold that the investigation carried out by Mr D’Arcy into the events on the night in question, was a reasonable investigation. He identified that the damage to the personal items must have been carried out during the duty of the claimant and Mr Higgins and the two men were subject to the enquiry. The claimant stated that he had seen the newspaper cuttings being put in the vents of the red locker and admitted that he had seen Mr Higgins write on the tobacco pouch. However he said that he did not see anything else being done to the personal items. The tribunal understand that his reason for not seeing anything else was that the claimant was doing all the site visits that night. Mr Higgins never left the control room. Yet the evidence was that the lockers were very difficult to move and it would take two men to move them away from the wall to insert items in at the open back, or remove things to smash. The tribunal hold that the decision of Mr D’Arcy to hold a disciplinary hearing in the circumstances was reasonable.

14. The disciplinary hearing and the appeal hearing were in the opinion of the tribunal conducted fairly and the conclusions reached were justified in the light of the evidence presented. The evidence of the claimant’s remarks about Mr Beggs being dead, were contained in the statements of Mr Beggs and Ms Boyd. Both of these were put to the claimant at the disciplinary hearing. A later statement to the same effect from Mr McNiece was dated 26 May, after the initial enquiry into the matter, although it did refer to an incident on 7 May when it is alleged that the claimant made a similar remark about Mr Beggs. This statement does not appear to have been put to the claimant and so the tribunal place less weight on it than on the other two statements. However it does lend weight to the evidence that there was some “bad blood” between the claimant and Mr Beggs, which explains why the claimant may not have objected to Mr Higgins putting the newspaper cuttings in the locker and defacing the tobacco pouch.

15. The tribunal is conscious that the respondent is a company providing security to high profile organisations, such as HMRC, in this case. The teams of security men have to work as colleagues sharing information and relying on one another as in a conflict situation. Likewise the respondent has to have total trust in its operatives to insure that sites are properly and effectively guarded. In a situation like this one, the respondent is, in the judgment of the tribunal entitled to exercise its powers under its contract of employment with its employees, to their full extent, provided that it goes about its investigation and disciplinary procedures in a fair way. The respondent was entitled to assume that the claimant, who admitted seeing some of the things that Mr Higgins had done, should have reported these matters to the respondent. His failure to do this lead to the breakdown in trust between the respondent and the claimant, which could not be tolerated in a business dealing with security.

16. The contract of employment, under which the claimant was employed, specified a number of offences, that if committed, would lead to summary dismissal, even if no previous warning had been given to the employee. These included; “causing deliberate damage to company, customer’s or third party property”. In the light of the evidence that the claimant knew that Mr Higgins had carried out some of the vandalism himself, it was reasonable for the respondent, through its officers to come to the conclusion that the claimant had taken part to some extent in causing the damage to the personal items and it was not unreasonable that in such circumstances that the claimant would be summarily dismissed.

17. In this case the tribunal hold that the respondent did carry out its investigatory and disciplinary procedures in a fair and proper way and accordingly the resulting summary dismissal of the claimant is within the band of reasonable responses, that a fair employer might adopt, if faced with a similar situation.

Chairman:

Date and place of hearing: 13 and 22 December 2011, Belfast.

Date decision recorded in register and issued to parties: