Mr D Constance v ISS Mediclean Ltd T/A ISS Facility Services Healthcare — 2019

Mr D Constance worked as a security supervisor at Homerton Hospital, where the respondent had taken over the security contract under TUPE. The dismissal followed an incident in the early hours of 28 September 2018, when a patient awaiting a Mental Health Act assessment became agitated and later assaulted staff and members of the public. A senior charge nurse complained that the claimant had been distant and had not helped prevent the assaults, and the respondent investigated before summarily dismissing him with effect from 30 November 2018. An appeal was heard by Mr Russell Sherry and was not upheld.

The tribunal applied section 98 of the Employment Rights Act 1996 and the Burchell approach to conduct dismissals. It found that Mr Nick Lones genuinely believed the claimant had been grossly negligent in failing to intervene earlier, and that this belief was based on reasonable grounds, including the contemporaneous complaint, the statements from colleagues, and the CCTV footage. The tribunal accepted that the events unfolded over about an hour and that the CCTV showed the claimant remaining seated for much of the incident while the patient moved around the emergency department.

The tribunal rejected the claimant's argument that he lacked the training or licence needed to intervene. It found no legislative or regulatory basis shown to it for the proposition that he could not act, and held that the respondent was not unreasonable in assuming he had the appropriate licence for his work as a security guard. It also held that the respondent was entitled to regard the claimant's lack of remorse and the client's complaint as relevant to the dismissal decision.

On procedure, the tribunal found that the investigation and disciplinary process were fair and reasonable. It noted that the claimant had opportunities to engage with the process, that the respondent was entitled to rely on CCTV rather than interviewing every person present, and that the appeal officer tried to encourage the claimant to put forward his case. The tribunal concluded that dismissal fell within the band of reasonable responses and dismissed the unfair dismissal claim. It also dismissed the holiday pay claim, noting that no evidence was presented of unpaid accrued holiday and that the dismissal letter stated all outstanding sums would be paid.