Mr D Curwen (Counsel) v Ms A. Niaz-Dickinson — 2022

Mr Ekhator, a Courts and Tribunals Security Officer at Field House, brought complaints of victimisation and unfair dismissal against OCS Group Limited. The victimisation complaint was withdrawn at the start of the hearing and was dismissed on withdrawal. The unfair dismissal claim concerned a January 2021 customer complaint that the claimant had not carried out a thorough patrol, had not detected people remaining in the building out of hours, and had not recorded matters properly in the Daily Occurrence Book.

The tribunal accepted that the respondent dismissed the claimant because it believed he had not carried out his duties properly: it had a genuine belief, based on reasonable grounds, that he had failed to complete an adequate patrol, had not checked areas where the lights were off, and had failed to record the presence of two individuals in the DOB. Applying section 98 ERA 1996 and the Burchell approach to misconduct dismissals, the tribunal found no sufficient criticism of the respondent's decision-making on the core patrol issue.

The tribunal did, however, find that the investigation was unreasonable in one material respect. It concluded that the respondent had not fully investigated how the DOB was supposed to be used, or what training and instructions had been given about it, and that a reasonable employer would have made those enquiries before concluding that the claimant was seriously at fault on that point. That defect made the dismissal unfair, even though the tribunal held that dismissal was still within the range of reasonable responses because of the substantial failure to complete the first patrol.

On remedy, the tribunal applied Polkey and concluded that there was a 75% chance the claimant would still have been dismissed even if the DOB issue had been properly investigated, because the patrol failure alone would have remained a serious matter. It therefore said the compensatory award should be reduced by 75%. It also found substantial overlap between Polkey and contributory conduct, and held that the basic award should also be reduced by 75% under section 122(2) ERA 1996. No final monetary award was fixed in this judgment, and the remaining remedies issues were left for agreement or a further hearing.