Industrial Tribunals Northern Ireland Decisions

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Cite as: [2012] NIIT 02146_11IT, [2012] NIIT 2146_11IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 02146/11

CLAIMANT: Rodney Howlett

RESPONDENT: Resource (NI) Ltd

DECISION

The unanimous decision of the tribunal is that the claim of unfair dismissal is dismissed.

Constitution of Tribunal:

Vice President: N Kelly

Members: Mr John Dennis Hampton

Mr James Barbour

Appearances:

The claimant was represented by Mr Aiden Sands, Barrister-at-Law, instructed by McKenna Laverty & Co, Solicitors.

The respondent was represented by Michelle McGinley of the Engineering Employer’s Federation.

Title

1. By consent, the name of the respondent was changed from Resource (UK) Ltd to Resource (NI) Ltd and the title of the action was amended accordingly.

Background

2. The claimant had been employed as a security guard at a public building in Northern Ireland for approximately nine years. He was summarily dismissed for gross misconduct on 27 June 2011.

3. The respondent is a limited company contracted to provide services, including security guarding services, to a range of public buildings in Northern Ireland.

Issue

4. The issue for the tribunal to determine was:-

“Whether the dismissal of the claimant on 27 June 2011 was a fair dismissal for the purposes of Article 130 of the Employment Rights (Northern Ireland) Order 1996.

5. It was common case that the respondent had satisfied the requirements of the statutory disciplinary procedure, as set out in the Employment (Northern Ireland) Order 2003. The claimant’s case was that:-

(i) the penalty of summary dismissal was too harsh in all the circumstances of the case, and that the dismissal was therefore unfair;

(ii) the respondent in suspending and dismissing the claimant had treated the claimant in a manner which was inconsistent with the treatment given to other employees in similar circumstances, and that the dismissal was therefore unfair.

6. The evidence presented in this case centred on the security arrangements at a particular public building in Northern Ireland. The respondent asked for a private hearing under Rule 54. The claimant did not object to a private hearing. Taking a broad view of the definition of “national security” and on a “safety first” basis, a private hearing was ordered. In accordance with Rule 54(1)(d) and 54(4), the names of witnesses will not be disclosed in this decision, the relevant location (“the location”) will not be identified and this decision may contain less detail than is normal.

The Hearing

7. The hearing was over two days, 14 and 15 February 2012.

8. Since there was no dispute that the claimant had been dismissed, the respondent gave evidence first. The following witnesses gave evidence on behalf of the respondent:-

(i) “A”, who was described as the service lead in relation to the service contract between the respondent and the public authority. He conducted the disciplinary hearing and made the initial decision to dismiss the claimant.

(ii) “B”, who was one of two service delivery managers employed by the respondent in relation to the relevant service contract. He was senior to “A”. He investigated a grievance lodged by the claimant on 6 December 2010 which had included a complaint about the conduct of the claimant’s colleagues in relation to clocking in and out of work.

(iii) “C”, who was the contracts manager for the respondent. He dealt with the claimant’s two appeals; the first against his dismissal and the second against the decision taken in relation to his grievance.

9. The claimant gave evidence on his own behalf and called no other witnesses.

10. The claimant wanted to introduce in evidence some 70 hours of CCTV recordings which he had unlawfully removed from the location at some point before June 2010 and which he had apparently then retained in his home. The claimant had first disclosed to the respondent that he had those CCTV recordings some 10 days before the tribunal hearing. The claimant gave evidence that he had earlier given the CCTV recordings to the public authority. That, even if true, was not relevant to this hearing. If the claimant had intended to rely on those CCTV recordings for the purposes of these proceedings, they should have been disclosed to the respondent as part of normal discovery. No satisfactory explanation was furnished for that failure to disclose the CCTV recordings, at an earlier stage, to the respondent.

11. The CCTV recordings apparently purported to show individual employees of the respondent entering and leaving the location at different times. The claimant’s allegation was that those employees had left their places of employment during working hours and that they had not been disciplined in the same way that he had been disciplined. However, the respondent accepted that employees came and went from the location with specific permission, as part of TOIL arrangements, or as part of their duties. In such cases, their duties would have been covered by others during their absence from the location.

12. The CCTV recordings would not have established whether any individual employee leaving the location had done so improperly or without permission and without cover. Leaving aside the issues of illegality and of non-disclosure on discovery, the CCTV recordings were irrelevant and of no probative value. The tribunal therefore did not watch the CCTV recordings.

Relevant Law

13. The proper approach for an industrial tribunal to take when considering the fairness of a misconduct dismissal is well settled and was recently considered by the Court of Appeal in Rogan v South Eastern Health & Social Care Trust [2009] NICA 47.

14. Article 130 of the Employment Rights (Northern Ireland) Order 1996 provides:-

“130-(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 is either a reason falling within paragraph (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.

(2) a reason falls within this paragraph if it –

(b) relates to the conduct of the employee,

(4) where the employer has fulfilled the requirements of paragraph (1), 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.”

15. The Court of Appeal in Rogan approved the earlier decision of Court in Dobbin v Citybus Ltd [2008] NICA 42 where the Court held:-

“(49) The correct approach to [equivalent GB legislation] was settled in two principal cases – British Home Stores v Burchell [1980] ICR 303 and Iceland Frozen Foods Ltd v Jones [1983] ICR 17 and explained and refined, principally in the judgements of Mummery LJ, in two further cases Foley v Post Office and HSBC Bank PLc (formerly Midland Bank) –v- Madden reported at [2000] ICR 1283 (two appeals heard together) and J Sainsbury v Hitt [2003] ICR 111.

(50) In Iceland Frozen Foods, Browne-Wilkinson J offered the following guidance:-

“Since the present state of the law can only be found by going through a number of different authorities, it may be convenient if we should seek to summarise the present law. We consider that the authorities establish that in law the correct approach for the industrial tribunal to adopt in answering the question posed by [equivalent GB legislation] is as follows:-

(1) the starting point should always be the words of [equivalent GB legislation] themselves;

(2) in applying the section an industrial tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair;

(3) in judging the reasonableness of the employer’s conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;

(4) in many, though not all, cases there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, and another quite reasonably take another;

(5) the function of an industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair; if the dismissal falls outside the band it is unfair.”

(51) To that may be added the remarks of Arnold J in British Home Stores where in the context of a misconduct case he stated:-

“What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, it 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, at any rate at the final 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. It is not relevant, as we think, that the tribunal would themselves have shared that view in those circumstances. It is not relevant, as we think, for the tribunal to examine the quality of the material which the employer had before them, for instance to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only upon the basis of being “sure”, as it is now said more normally in a criminal context, or, to use the more old fashioned term such as to put the matter beyond reasonable doubt. The test, and the test all the way through is reasonableness; and certainly, as it seems to us, a conclusion on the balance of probabilities will in any surmisable circumstance be a reasonable conclusion.”

16. In Bowater v North West London Hospitals NHS Trust [2011] EWCA Civ 63, the Court of Appeal considered a decision of the Employment Appeal Tribunal which had set aside a decision of an employment tribunal. The employment tribunal had determined that a remark made by a nurse in an Accident & Emergency Department was not a sufficient basis for a fair dismissal. Lord Justice Longmore stated at Paragraph 18 of the decision that:-

“I agree with Stanley Burnton LJ that dismissal of the appellant for her lewd comment was outside the range of reasonable responses open to a reasonable employer in the circumstances of the case. The EAT decided that the ET had substituted its own judgment for that of the judgment to which the employer had come. But the employer cannot be the final arbiter of its own conduct in dismissing an employee. It is for the ET to make its judgment always bearing in mind that the test is whether dismissal is within the range of reasonable options open to a reasonable employer.”

He continued at Paragraph 19:-

“It is important that, in cases of this kind, the EAT pays proper respect to the decision of the ET. It is the ET to whom Parliament has entrusted the responsibility of making what are, no doubt, sometimes, difficult and borderline decisions in relation to the fairness of dismissal.”

17. In Fuller v London Borough at Brent [2011] EWCA Civ 267, the Court of Appeal again considered a decision of the Employment Appeal Tribunal which had set aside the decision of an employment tribunal on the basis that the employment tribunal had substituted its view for the decision of an objective reasonable employer. Lord Justice Mummery stated at Paragraph 7 of the decision that:-

“In brief the counsel’s case on appeal that the ET erred in law. It did not apply to the circumstances existing at the time of Mrs Fuller’s dismissal the objective standard encapsulated in the concept of the ‘range or band of reasonable responses’. That favourite form of words is not statutory or mandatory. Its appearance in most ET judgments in unfair dismissal is a reassurance of objectivity.”

At Paragraph 38 of the decision, he continued:-

“On a proper self-direction of law I accept that a reasonable ET could properly conclude that the council’s dismissal was outside the band or range of reasonable responses and that it was unfair. If, as I hold, the ET applied the objective test, it did not err in law and there was no ground on which the EAT was entitled to set it aside or to dismiss Mrs Fuller’s claim.”

18. In Salford Royal NHS Foundation Trust v Roldan [2010] IRLR 721, the Court of Appeal again considered a decision of an Employment Appeal Tribunal which set aside the decision of an employment tribunal on the ground that they had substituted their judgment of what was a fair dismissal for that of a reasonable employer. At Paragraph 13 of the judgment, Lord Justice Elias stated:-

“Section 98(4) focuses on the need for an employer to act reasonably in all the circumstances. In A v B [2003] IRLR 405, the EAT (Elias J presiding) held that the relevant circumstances include the gravity of the charge and their potential effect upon the employee. So it is particularly important that employers take seriously their responsibilities to conduct a fair investigation where, as on the facts of that case, the employee’s reputation or ability to work in his or her chosen field of employment is potentially apposite”

19. The relevance of consistency in determining whether or not a dismissal is fair is considered in Harvey [DI-paragraph 1038-1043]. In Post Office –v- Fennell [1981] IRLR221, the Court of Appeal stated:-

“It seems to me that the expression “equity” as there used comprehends the concept that employees who misbehave in much the same way should have meted out to them much the same punishment, and it seems to me that an industrial tribunal is entitled to say that, where that is not done, and one man is penalised much more heavily than others who have committed similar offences in the past, the employer has not acted reasonably in treating whatever the offence is as a sufficient reason for dismissal.”

20. Harvey makes it plain that arguments based on inconsistency must be treated with caution.

21. In Paul –v- East Surrey District Health Authority [1995] IRLR305, the Court of Appeal stated:-

“I consider that all industrial tribunals would be wise to heed the warning of Waterhouse J giving the judgement of the Employment Appeal Tribunal in Hadjioannou –v- Coral Casinos Ltd [1981] IRLR352 where, in paragraph 25, he said:-

“We accept that analysis by counsel for the respondents of the potential relevance of arguments based on disparity. We should add, however, as counsel has urged upon us, that industrial tribunals would be wise to scrutinise arguments based upon disparity with particular care. It is only in the limited circumstances that we have indicated that the argument is likely to be relevant, and there will not be many cases in which the evidence supports the proposition that there are other cases which are truly similar, or sufficiently similar, to afford an adequate basis for the argument. The danger of the argument is that the tribunal may be led away from a proper consideration of the issues raised by [legislation equivalent to Article 130]. The emphasis in that section is upon the particular circumstances of the individual employee’s case. It would be most regrettable if tribunals or employers were to be encouraged to adopt rules of thumb, or codes, for dealing with industrial relations problems and in particular, issues arising when dismissal is being considered. It is of the highest importance that flexibility should be retained, and we hope that nothing that we say in the course of our judgement will encourage employers or tribunals to think that a tariff approach to industrial misconduct is appropriate. One has only to consider for a moment the dangers of the tariff approach in other spheres of the law to realise how inappropriate it would be to import it into this particular legislation.”

I would endorse the guidance that ultimately the question for the employer is whether in the particular case dismissal is a reasonable response to the misconduct proved. If the employer has an established policy applied for similar misconduct, it would not be fair to change the policy without warning. If the employer has no established policy but has on other occasions dealt differently with misconduct properly regarded as similar, fairness demands that it should consider whether in all the circumstances, including the degree of misconduct proved, more serious disciplinary action is justified.

An employer is entitled to take into account not only the nature of the conduct and the surrounding facts but any mitigating personal circumstances affecting the individual concerned. The attitude of the employee to his conduct may be a relevant factor in deciding whether a repetition is likely. Thus an employee who admits that conduct proved is unacceptable and accepts advice and help to avoid a repetition may be regarded differently from one who refuses to accept responsibility for his actions, argues with management or makes unfounded suggestions that his fellow employees have conspired to accuse him falsely. I mention this because I consider that if the industrial tribunal in this case had had regard to these factors, they would not have regarded the actions of the employers in Mrs Rices’ case as disparate or have said that Mr Verling’s misconduct should have been treated just as seriously, if not more seriously, than Mr Paul’s.”

22. Harvey also makes it clear that an employer cannot be considered to have treated other employees differently if he was, at the relevant time, unaware of their conduct. It further states that if an employer consciously distinguishes between two cases the dismissal can be successfully challenged only if there is no rational basis for that distinction. Finally, Harvey makes it clear that even if there is clear inconsistency, this is not determinative of the issue. This is only one factor which may have to give way to flexibility. Therefore, if an employer has been unduly lenient in the past, he may still be able to dismiss fairly in future notwithstanding the inconsistent treatment. The fairness of a dismissal has to be judged in the round, in all the circumstances of the case.

Findings of Fact

23. On 6 December 2010, the claimant sent a written grievance to the respondent’s Human Resources Department. The grievance alleged that the claimant was hated by other staff because he was not from Northern Ireland (he is Australian), was not ex-police and was not in the right church. He complained of “victimisation” and of being sent to Coventry by his colleagues. He also repeated an allegation that he had earlier made to a service contract manager to the effect that his colleagues were not clocking in and out of work properly and were defrauding their employer. He did not identify the colleagues who allegedly were doing this and did not provide the relevant dates and times in the written grievance.

24. On 16 December 2010, the claimant met “B” who was investigating his grievance of 6 December 2010. The claimant provided “B” with no specifics of his allegation of discrimination. For example in relation to religious discrimination, he said “it is a feeling you get in the background”. In relation to being victimised for not being ex-police, he agreed it was a “perception”. In relation to clocking offences, he could not remember who had left work early and confirmed that he did not know if any of his colleagues had not clocked themselves out before leaving work. The claimant said that if the respondent wanted to check the CCTV records for November 2010, they would have to do so quickly because the hard drive automatically deleted footage after a period.

25. On 2 March 2011, the claimant was rostered for duty in a sangar at the location. That sangar overlooked a gate and overlooked the place where a particular individual’s car (the car) was parked on the main road. The claimant was due, according to the written roster, to start his duty in the sangar at 9.00am.

26. The claimant stated in evidence to the tribunal that he did not need to be in the sangar until 9.25am or thereabouts, when the main doors of the location were opened to the public. In the meantime, the car would be observed by another security guard whose duty was to monitor CCTV coverage.

27. The tribunal does not accept this evidence. The written roster was clear and specific. The claimant’s duty started at 9.00am in the sangar. The claimant agreed that that duty involved both watching the gate and watching the car. There was no indication in the written roster or elsewhere in the respondent’s procedures that he, or indeed the security guard monitoring CCTV, could start duty at a later time than that indicated in the written roster.

28. The evidence from “A”, “B” and “C” to the tribunal and the statements from the claimant’s colleagues obtained during the disciplinary and grievance process were consistent and credible. Before 9.00am, when sangar duty commenced, the car, if it had arrived early would be observed by the CCTV operator. From 9.00am watching the car would be the responsibility of the security guard who had been rostered for sangar duty. “A”, “B” and “C” accepted that a guard, including a guard rostered for sangar duty, could notify a supervisor or colleague and get someone to cover their post for a brief period to enable them to do something else.

29. Under cross-examination, the claimant asserted that the version put forward by his former colleagues and managers was untrue. According to the claimant, the only circumstances in which anyone would go to the sangar before approximately 9.25am would be if they wanted to have a rest and to take it easy. He gave the example of someone who was not feeling well. That statement, in the circumstances of the present case, and given the location involved, is simply not credible. This was a security sangar in a location with an obvious security risk and not a place for staff to take a rest.

30. The claimant clocked in just before 9.00am on 2 March 2011. He first checked the fridge in the staff room and then decided to go outside the building to buy something for his lunch in a local supermarket. He did not tell anyone he was leaving the location and did not ask the CCTV operator, or anyone else, to enter the sangar or to watch the car in his absence. It is particularly important that there are more CCTV cameras in the location than there are TV monitors. Therefore the CCTV operator has to decide which cameras to monitor. If the CCTV operator had reason to believe the sangar was manned in accordance with the roster, and the tribunal accepts that he did have good reason after 9.00am on that date, there would have been no reason for the CCTV operator to have observed that particular camera which covered the area where the car was parked.

31. The claimant, after leaving the location, went to the supermarket, bought some frozen meals and then returned to the location approximately 20 to 25 minutes later. The sangar was unmanned during this period and no one else had been tasked with observing the gate and particularly with observing the car.

32. The car may or may not have had a police driver sitting it during all or part of this period. However it was clear that the respondent and the respondent’s employees had no control over that police driver and could not have relied on that police driver remaining with the car throughout that period or indeed throughout any period. The claimant, in evidence to the tribunal, sought to suggest, for the first time, that the police driver, if he was going to leave the car, would have first entered the location and then the sangar to let the guard in the sangar know that he was leaving the car. That seems to the tribunal to be highly unlikely and it is notable that this suggestion was not made by the claimant at any stage during the disciplinary or appeal process. It was also notable that such an exercise, in the unlikely event of it having occurred, would have achieved nothing because the driver would not have found the claimant in the sangar or indeed anywhere else during the relevant period.

33. The claimant’s absence from the sangar was reported by one of the claimant’s colleagues. The claimant was spoken to by another security guard colleague who was standing in for the supervisor. He reported that the claimant’s response was that he “didn’t care anymore”. The matter was then referred upwards to a service contracts manager.

34. The claimant was suspended on full pay on 3 March 2011, pending an investigation into an allegation that he had abandoned his post without notification and that he had risked bringing the respondent into disrepute.

35. On 8 March 2011, the services contract manager interviewed one of the two guards (“D”) who had been in the CCTV area. There were two guards in the area at that time. One was in charge of a metal detector arch and one was the CCTV operator. “D” confirmed that the claimant had come in to the location at about 9.00am. At about 9.10, another security guard had asked who was supposed to be in the sangar. “D” checked and confirmed that it was supposed to be the claimant. He did not know where the claimant was. The claimant then returned and he was told to go immediately to the sangar. The claimant had a shopping bag with him. His response was “I don’t care anymore”. “D” confirmed that if the car was in the parking place, the sangar must be manned.

36. Another security guard (“E”) was interviewed as part of the disciplinary investigation. He confirmed that the sangar had to be manned if the car was in its parking place. The claimant’s suggestion that a security guard did not have to be in the sangar until the main doors were open to the public was put to E and he stated that this was incorrect.

“No you have to be in the sangar”.

37. On 31 March 2011, the claimant was interviewed twice (morning and afternoon) by the services contract manager as part of the disciplinary investigation. The claimant accepted that he had left the location at approximately 9.00am to go shopping and that he had returned at approximately 9.25am. He also accepted that the car had been in its parking space. He claimed that it was the norm to only go to the sangar at about 9.25am when the front doors were opened to the public. He accepted that his response when challenged on 2 March 2011 had been “I don’t care anymore”. He also accepted that he had not told anyone that he was leaving the location. His main response during this meeting was to make allegations about the security guard who had first reported his absence on 2 March 2011. The claimant alleged that that other security guard had left his post on another day i.e. 7 March 2011 and that he (the claimant) had observed this from a car parked near the location. The claimant accepted in evidence that this had been a lie. He had used information from the CCTV footage which he had illegally copied from the public authorities system before he had been dismissed. It was pointed out to the claimant that the sangar had not been left unattended at any period during this incident on 7 March 2011 and that this was a different situation from that on 2 March 2011 when the claimant had left the sangar unattended for approximately 25 minutes.

38. In a letter dated 24 May 2011, A invited the claimant to a disciplinary interview. The charge was:-

“That on 2 March 2011, you were due to commence your shift at 9.00am, however when an employee arrived at the site it was noted that you were not on duty. You attended the site at approximately 9.25am with personal shopping.

When questioned regarding this your response was deemed to be unacceptable.”

39. At a disciplinary interview on 27 May 2011, the claimant accepted that he had left the location just after 9.00am without asking for permission and without arranging for cover in the sangar. He also accepted that he did not return until either 9.20 or 9.25am. He maintained his claim that even though he had been rostered to be in the sangar from 9.00am, he did not have to go to the sangar until 9.25am.

However he said:-

“Yes I regret leaving my post, if I could take it back I would.”

40. A decided that the claimant had been guilty of gross misconduct in leaving his post and determined that the appropriate penalty was summary dismissal. That decision was notified to the claimant by letter dated 27 June 2011. A confirmed his findings as:-

“- You abandoned your duty when you left (location) at the beginning of

your rostered duty on 2 March 2011 knowing that [the] car was present.

- you failed to notify any of your colleagues that you were leaving site.

- You left the sangar unmanned resulting in a serious breach of security which could have had serious repercussions

- Your actions have the potential to damage the relationship that Resource have with their client – and furthermore bring the company into disrepute.”

41. On 20 July 2011, the claimant telephoned the respondent’s Human Resources Department and complained that he disagreed with his dismissal. He also complained that his grievance had not been properly investigated. He stated that he was going to the public authority with his allegations of clocking fraud unless either his dismissal was revoked or his colleagues suspended, within the next two days.

42. The claimant’s solicitor then submitted a letter of appeal against the dismissal on 28 July 2011. The respondent accepted the late appeal because the claimant had been in Australia.

43. The appeal was heard on 16 September 2011 by “C”. The claimant again maintained his position that he had not been required to be in the sangar until 9.25am. He maintained that between 9.00am and 9.25am there was:-

“A 25 minute window to do anything you needed to do and if we needed to go to shop we could do that in that window.”

He accepted that he had not told anyone that he was leaving the location and had not arranged for the sangar to be covered.

44. On 10 October 2011, “C” interviewed the guard who had been standing in for the supervisor on 2 March 2012. That guard confirmed that he did not know the claimant had left the location and that when the claimant had returned the claimant had told him that he “didn’t care about having left to go down the town”.

“C” also interviewed four other security guards who had been on duty on the morning of 2 March 2011. Each confirmed that it would not have been normal practice to leave the location without informing anyone.

45. “C” confirmed the dismissal by letter dated 20 October 2011. He stated:-

“- There are occasions whereby staff have reason to leave _ for a short

period of time but they leave only after they have been granted

permission.

- You admitted you left _ on 2 March 2011.

- You were aware that _ was acting supervisor on 2 March 2011.

- You do not attempt to inform _ or any of your colleagues that you were leaving site.

- You abandoned your duty with full knowledge that _ the car was present.

- You left the sangar unmanned thus resulting in a serious breach of security which could have had grave repercussions.

- Your actions have the potential to damage the relationship that Resource have with their client.

- Your conduct brings the business of Resource into disrepute.

- Your actions have led to a breakdown in the trust and confidence that the company have in you.”

46. When the disciplinary process was ongoing, the grievance process continued in parallel. The claimant submitted a further grievance on 21 March 2011 in which he again alleged that clocking offences had occurred. On this occasion he named staff and specified dates on which the alleged offences occurred. He concluded by saying:-

“I would like you to act in the same way in this case as you did in my case, or are you trying to victimise me?”

47. The claimant still did not disclose that he had CCTV footage in his possession. This footage had been recorded on disk. The claimant stated in evidence that he did not disclose that he had the recordings because he was aware that he had taken them illegally from the public authority CCTV system. The tribunal does not accept this evidence. Not only is it inconsistent with the claimant’s statement that he had supplied the CCTV footage direct to the public authority, apparently without any concern about the legality, it is clear from the claimant’s own notes in relation to the CCTV footage and from his own evidence to the tribunal that the footage had indicated that the claimant had left his workplace for long periods, returning on one day for approximately two minutes, solely to clock off before leaving for home. The tribunal concludes, on the balance of probabilities, that the only reason the claimant did not disclose that he had possessed CCTV footage on disk and did not properly assist the inquiry into these alleged offences was because he knew he would be implicated in those clocking offences.

48. On 31 March 2011, “B” interviewed the claimant in relation to his grievance. The claimant stated in the course of a lengthy interview that he had saved CCTV footage on to the hard disk on the public authorities system in the location. He didn’t disclose that he had separately recorded CCTV footage on to disks which he retained in his home.

49. “B” interviewed eight other members of security staff. All denied the allegations of clocking offences.

50. Shortly thereafter and before “B” could arrange with the public authority to check the hard drive of the CCTV system, that hard drive was seized by the PSNI as part of a murder inquiry. It remains in the custody of the PSNI for that purpose and is not available, for obvious reasons, to either the public authority or to the respondent.

51. The claimant’s grievance was not upheld.

52. The claimant appealed against the decision not to uphold his grievance and that appeal was heard on 7 June 2011 by “C”. The claimant again still did not disclose that he CCTV footage illegally obtained on disk. “C” told him that when the hard drive was made available to the respondent by the PSNI, the investigation into his allegations would continue.

53. When the CCTV footage on disk was eventually disclosed by the claimant to the respondent, some 10 days before the commencement of the tribunal hearing, the respondent commenced an investigation in to the allegations with the assistance of that information. The tribunal accepts that this will take some time, to interview staff and to properly compare the CCTV footage to clocking in and other records.

Decision

54. The tribunal is satisfied that the reason for the dismissal was the conduct of the claimant; a potentially fair reason for the purposes of the 1996 Order. The claimant argued that the real reason had been either that the security guard who reported his absence on 2 March had disliked him or that the claimant had made allegations of clocking offences. Firstly, while it is clear that the claimant had previously lodged complaints against the security guard who had reported his absence from the sangar, and clear that there was significant and probably reciprocal ill feeling between the two men, the facts and timings of the claimant’s absence from the sangar were not in dispute and the security guard who reported the claimant was not a decision maker in relation to the dismissal.

The claimant had not claimed that he had been dismissed because of a public interest disclosure. Furthermore the initial “disclosure” was on 6 December 2010. Disciplinary action did not commence until some three months later and that action was as a result of the claimant’s absence from the sangar. There is no evidence that the disciplinary action or the dismissal was for any reason other than the claimant’s conduct.

55. The first argument put forward on behalf of the claimant was that in all the circumstances of the case the decision to summarily dismiss the claimant was outside the band of reasonable responses open to a reasonable employer. The tribunal does not accept this argument. The claimant was an experienced security officer. He had been licensed by the SIA and had been trained by the respondent. He had nine years’ experience at the relevant location. There had been regular security briefings about the raised security risk following recent dissident activity. Even if there had not been such security briefings, anyone who even occasionally glanced at a newspaper or at a news bulletin would have been aware of a heightened security risk. In the particular circumstances of this location and given the particular circumstances relating to the relevant car, none of which can be discussed further in this decision, it is simply incredible for anyone to argue that leaving a sangar unmanned for 25 minutes was an offence for which a summary dismissal was not an appropriate penalty. The claimant’s clear disciplinary record is not, of itself, sufficient to make a summary dismissal, in these circumstances, unfair.

56. The respondent was entitled to include, and it is in any event clear, that the written roster had been specific. The claimant was supposed to be in the sangar at 9.00am. Every other member of staff interviewed was consistent in their belief that a security guard rostered for sangar duty had to be on duty at 9.00am. It is not credible for the claimant to maintain, as he does maintain, that he had a window between 9.00am and 9.25 to do what he wanted and that the only reason anyone would go in to the sangar during those 25 minutes was to take a rest.

57. In all the circumstances of this case, a decision to summarily dismiss the claimant was not only within the band of reasonable responses open to a reasonable employer, it was quite possibly the only reasonable penalty to be imposed.

58. The next issue to be considered is the claimant’s argument that the dismissal was an unfair dismissal because of inconsistency on the part of the respondent.

59. The respondent’s reaction to the initial grievance lodged on 6 December 2010 could perhaps be criticised as being too slow and perhaps not sufficiently energetic. With the benefit of some hindsight, “B” or someone else in the respondent’s management structure could perhaps have tried to inspect the CCTV footage held by the public authority earlier than they did. However, the claimant’s initial allegation of clocking offences was sandwiched between various complaints of potentially unlawful discrimination based on nationality, religious belief and previous employment. The claimant did not, despite requests from the respondent, initially provide specifics of the allegation of clocking offences. He did not initially provide dates and times although he clearly did possess the relevant information. The respondent had no specifics of the allegation other than the claimant’s remark that only three staff were not involved in the practices. The claimant, in a reaction to his own disciplinary problems, followed up his initial grievance with a further grievance on 21 March 2011. The respondent moved relatively quickly once further details had been provided in that second grievance. Staff were interviewed. The claimant disclosed that CCTV footage had been recorded on the public authority’s hard drive. He did not disclose, as he could have disclosed, that he had also recorded CCTV footage on disk, in a readily accessible form, which he held in his home. The hard drive was unfortunately seized by the PSNI shortly thereafter in an unrelated investigation. It was made plain to the claimant by “C”, at the grievance appeal stage, that an investigation into the claimant’s allegations of clocking offences would resume once the public authority’s hard drive was made available by the PSNI and indeed by the public authority. Once the claimant eventually disclosed that he had some 70 hours of CCTV footage on disk, some 10 days before the commencement of the tribunal hearing, the respondent did resume the investigation. The tribunal is content that that investigation will take some time, not least to carefully match the CCTV footage with the available paperwork including attendance records.

60. None of this can ground an argument that the claimant’s dismissal was an unfair dismissal because of inconsistency:-

(i) The investigation into the alleged clocking offences is continuing. Therefore it cannot be argued that anyone has been treated more leniently than the claimant in terms of disciplinary penalty. It may well be the case that a significant number of individuals are going to be the subject of disciplinary procedures and it may even be the case that several individuals will be dismissed. It is far too early to say one way or the other.

(ii) Furthermore, the claimant was clearly involved in the clocking offences. His notes and indeed his sworn evidence to the tribunal make it plain that on at least one day, he left the location and spent several hours shopping while he continued to be paid by the respondent for working at the location. It is equally clear that he then returned to the location for some two minutes to clock himself off before going home. His position before the tribunal was that that was entirely different and in some way less culpable than the alleged actions of his colleagues, because he clocked himself off rather than asking one of his colleagues to do it for him. To the tribunal, this seems to be a distinction without a difference. The essence of clocking offences is that the individual represents himself as being at the workplace working when in fact he is not. That applies equally to the claimant as it does to the other alleged perpetrators.

(iii) Clocking offences, while a serious matter, cannot be regarded as sufficiently similar to the claimant’s disciplinary offence to ground an argument of inconsistency. The claimant was tasked to be in the sangar from 9.00am. This was not a trivial or an inconsequential task. His duty was to observe the front gate of the location and particularly to observe a car driven by a police driver which was parked on the street and which was easily accessible by members of the public. For the claimant to take the attitude, as he still maintains, that he could decide what he wanted to do between 9.00am and 9.25 and could, if he so wished, walk down the town to do his shopping and leave the sangar unattended, is not credible and the respondent was entitled to discount it. The respondent was entitled to conclude that this was a serious breach of security and a matter which could, and may well already have done, bring its reputation into significant disrepute. Ordinary clocking offences, where there is no evidence of a breach of security or of posts being unattended, are of a much lower level of culpability.

61. The respondent, after a reasonable investigation, reached a reasonable belief that the claimant had been guilty of gross misconduct and applied an appropriate penalty. The claim of unfair dismissal is therefore dismissed.

Vice President:

Date and place of hearing: 14 and 15 February 2012, Belfast

Date decision recorded in register and issued to parties: