Mr S Bile v Ward Security Ltd — 2020

Mr Bile, who is Black African, worked for Ward Security Ltd as a Security Officer from 20 January 2016 until summary dismissal on 7 May 2019. The tribunal found that although his original contract was a zero-hours contract, his employment had later become permanent and, from May 2018, he was employed for 60 hours per week at Rupert Court at £10.20 per hour, with the rest of his original contract remaining in force.

The direct race and sex discrimination complaints were dismissed. Mr Bile relied on white female comparators, JN and DW, who had been involved in security incidents at Battersea Studios without the same disciplinary outcome. The tribunal found the incidents relied on were materially different from Mr Bile's case, that additional comparator material was either unsupported or not truly comparable, and that there was no evidence pointing to discriminatory circumstances.

The unfair dismissal complaint was upheld. The respondent showed a potentially fair conduct reason, namely the 9 April 2019 incident at Battersea Studios in which an unauthorised person entered the building unchallenged and reached a tenant's area. However, the tribunal found procedural and substantive unfairness: the claimant was not given an opportunity to respond to the outcome of the employer's investigation into comparator incidents before dismissal, the appeal did not properly deal with those issues, and the appeal outcome introduced reasons that had not been properly investigated or put to the claimant. The tribunal concluded that dismissal did not fall within the band of reasonable responses.

The holiday pay complaint concerning untaken 2018 annual leave was dismissed. The tribunal found that moving leave into December 2018 and January 2019 meant Mr Bile lost untaken leave in the 2018 leave year, but there was no contractual or statutory right to payment in lieu or carry-over in those circumstances. The respondent could have reminded him about using leave, but the tribunal found that did not give rise to the legal claim he advanced.

The tribunal upheld the unauthorised deductions complaint concerning contracted hours after Mr Bile was removed from Rupert Court. It found he was entitled to 60 hours per week at £10.20 per hour and that the respondent's grievance appeal had identified a gross underpayment of £515.10 for 50.5 hours. The tribunal did not finally quantify the award because the period and methodology were unclear and the claimant's schedule of loss did not give credit for the payment already made.

The wrongful dismissal claim was upheld. Applying the contractual test for summary dismissal, the tribunal found that Mr Bile's conduct amounted to misconduct because he should have taken more diligent steps to establish whether the intruder had a legitimate right to enter the building. It also found, taking account of the Battersea Studios reception layout and previous security incidents, that the conduct was not deliberate behaviour or serious negligence and did not amount to a repudiatory breach of contract. The claimant was entitled to three weeks' notice, with damages to be quantified at a remedy hearing together with unfair dismissal compensation and the wages award.