Ms P Esimaje v Mitie Aviation Secuurity Limited Heard by CVP — 2021

Ms P Esimaje, a security guard at St Pancras International, brought claims of unfair dismissal, disability discrimination and failure to pay notice after her dismissal on 2 August 2018. The tribunal accepted that the respondent had actual or constructive knowledge of her diabetes. It found there was a provision, criterion or practice requiring some employees, including the claimant, to work alone at times on the staff access lane, but held that the claimant was not left alone in the relevant sense because other staff were nearby, she had access to supervisors and a desk phone, and she had fixed breaks designed to let her take medication.

The tribunal dismissed the reasonable adjustments claim because it found the claimant had not been placed at a substantial disadvantage compared with non-disabled employees, and in any event the respondent had already put arrangements in place to allow her to ask for assistance and to take breaks. On the section 15 claim, the tribunal accepted that becoming unwell or sleepy could arise from diabetes, but it rejected the claimant's account that she was only using her phone because of a medication alarm or to call for help. Having reviewed the CCTV and witness evidence, it found her conduct was not caused by disability. It added that, if it had been wrong on causation, dismissal would still have been a proportionate means of achieving the legitimate aim of maintaining security at Eurostar's terminal.

The unfair dismissal claim was also dismissed. The tribunal found the reason for dismissal was conduct, namely that the claimant used her mobile phone and did not give proper attention to the x-ray screens while bags passed through the machine. Applying the Burchell test and the range of reasonable responses approach under section 98 of the Employment Rights Act 1996, it held the dismissing manager had a genuine belief in misconduct, on reasonable grounds, after a reasonable investigation. The tribunal considered the CCTV, two investigatory meetings, witness interviews and the disciplinary and appeal stages, and it rejected the claimant's complaints about delay, the 20-minute screen rule and the absence of a copy of the CCTV as material flaws.

The notice pay or breach of contract claim failed because the tribunal found the claimant's conduct amounted to gross misconduct and justified summary dismissal without notice. The appeal was also dismissed. No remedy was awarded because all claims failed.