Rep: S Martins Esq (lawyer) For the v Ms Young (in house lawyer) Interpreter: Mr Shamim — 2021

The claimant, a gallery assistant at the National Gallery, was dismissed on 14 May 2019 after a disciplinary process in which the respondent concluded he had been sleeping on duty on 4 April 2019. The tribunal accepted the evidence of the supervisor, Mr Aju Thomas, and the CCTV-based accounts reviewed by the respondent, and it found that the claimant was either sleeping, dozing or nodding off during the relevant period. It rejected the claimant’s denial that AT was present and found the investigation was thorough and fair.

The tribunal also rejected the claimant’s challenge to the disciplinary notes and the fairness of the process. It found that the claimant was given adequate opportunity to answer the allegation at the disciplinary hearing and appeal, that he was represented throughout, and that the CCTV was shown at the hearings, including on request. Arguments that the CCTV should have been provided in advance were rejected. The tribunal held that the respondent had reasonable grounds for its belief and had carried out as much investigation as was reasonable in the circumstances, applying the Burchell approach.

On the unfair dismissal claim, the tribunal held that the reason for dismissal was conduct, namely sleeping on duty, and that this was a potentially fair reason under s.98 ERA 1996. Applying s.98(4), it found that the decision to dismiss fell within the range of reasonable responses, taking into account the respondent’s disciplinary policy, which listed sleeping on duty as gross misconduct, and the importance of vigilance in the National Gallery setting. The unfair dismissal claim was dismissed.

On breach of contract, the tribunal held that the claimant was not dismissed in breach of contract because the contractual and disciplinary documents allowed summary dismissal for gross misconduct after the formal disciplinary process. That claim was also dismissed.