Mr Michael Adejare v NSC 365 Ltd t/a National Security — 2021

The claimant was a security guard. The tribunal recorded that his section 100 ERA 1996 claim was dismissed upon withdrawal, then considered automatic unfair dismissal under s101A and s104 ERA 1996, wrongful dismissal, and holiday pay. It found a history of problems with Active Guard patrols, including a final written warning in May 2017 and further complaints in July 2018 about gaps in patrols.

On 1 August 2018, the claimant was photographed by a client in a cabin at St George's Court. The tribunal found that his boots were off, there was no evidence of food or drink, his head and left shoulder were resting against the cabin side, and he only opened his eyes when he heard the camera click. It accepted the respondent's evidence that he was asleep on duty and rejected the claimant's account that he was on a lunch break or merely resting his eyes.

The tribunal held that the principal reason for dismissal was the claimant's conduct, namely sleeping while on duty, not a refusal to comply with or forgo a Working Time Regulations right. It also held that there had been no explicit refusal or proposed refusal of a WTR right, and that the claimant's later appeal reference to an employment law break right did not amount to an allegation that the respondent had already infringed a relevant statutory right. The s101A and s104 claims were therefore dismissed.

The wrongful dismissal claim also failed. The tribunal held that sleeping on duty was gross misconduct and, together with the other matters relied on, amounted to a repudiatory breach entitling the respondent to dismiss without notice. The holiday pay claim succeeded: the tribunal found 9.5 days of untaken holiday remained due at £93.96 per day and ordered payment of £892.62 gross, less income tax and national insurance.