Mr Rogers - Counsel v Mr Moon - Consultant — 2019

Mr Omotosho worked for ISS Facility Services Limited as a Front of House Officer and was subject to a handbook that prohibited personal mobile phone use while on duty. The tribunal found that he had received repeated reminders about that policy and had a live written warning for phone misuse before the events of 23 September 2018. On that date he was seen using his phone twice during a shift, continued after being told to stop, later accepted he had been using it for about an hour, and was dismissed for gross misconduct after a disciplinary hearing chaired by Mr Whitehouse. Mr Parker dismissed the appeal on 14 November 2018.

On the protected disclosure allegation, the Claimant reported an incident involving Mr Ale and Mr LL on 11 September 2018. The tribunal accepted that he reasonably believed Mr LL had assaulted Mr Ale and that the information could tend to show a criminal offence, a breach of legal obligation or a health and safety issue. It held, however, that any belief that pressing the complaint was in the public interest was not reasonable, and in any event Mr Whitehouse was not aware of the disclosure when deciding to dismiss the Claimant. The dismissal was found to have been for the mobile phone misconduct, not for whistleblowing.

The tribunal held that the Claimant's conduct amounted to gross misconduct and that dismissal fell within the range of reasonable responses, so the unfair dismissal claim failed. The wrongful dismissal / breach of contract issue also failed because the repeated phone use, the live warning, and the refusal to comply with a reasonable instruction to stop using the phone amounted to gross misconduct and gross insubordination. No remedy was awarded because the substantive claims failed.

On race discrimination, the Claimant alleged that he had been refused opportunities to move into controller or access controller roles and had been denied related training because he was black. The tribunal found that vacancies were advertised to staff who were asked to apply by email and provide a cover letter, that several comparators already held CCTV licences or had applied in the required way, and that the Claimant did not do so. It held that there was no evidence that race played any part in the decision-making, and that the earlier promotion allegations were substantially out of time apart from a late-September 2018 email which was not a well-founded application for the roles.