ETZ 4(WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4100134/2024 Hearing Held at Edinburgh on 17, and June 2024 Employment Judge: M A Macleod Mr R Muyanja v Represented by Mr R Wachtel Solicitor Mitie Limited — 2024

The claimant was employed as a security officer at the SQA site in Edinburgh from March 2019 and worked night shifts. In June 2023 he received a final written warning after a disciplinary process concerning sleeping on duty. In September 2023 the respondent investigated fresh concerns that he had been sleeping on duty, arriving late, and missing check calls, and suspended him on full pay while the matter was investigated.

At the disciplinary hearing on 25 September 2023, the claimant said he had felt drowsy and dizzy after taking Peptac liquid and disputed that he had been sleeping. He also accepted that he was sometimes late and gave explanations for missed check calls, but the tribunal noted that he did not clearly deny a substantial number of missed calls. The respondent dismissed him for gross misconduct and the appeal was unsuccessful on 9 November 2023.

The tribunal applied section 98 of the Employment Rights Act 1996, together with the Burchell approach and the Iceland Frozen Foods guidance on the range of reasonable responses. It found that the dismissing officer, Mr Cook, genuinely believed the allegations, that there were reasonable grounds for that belief, and that the respondent carried out a reasonable investigation. The tribunal accepted that the claimant’s own statements, including references to being "nodding off" and being drowsy, supported the respondent’s conclusion that he had been asleep or falling asleep on duty, and it also accepted the findings on persistent lateness and missed check calls.

The tribunal held that the dismissal was a reasonable response to the misconduct findings, particularly given the claimant’s role as a lone security officer and the fact that he was already subject to a live final written warning. The unfair dismissal claim was therefore dismissed, and no monetary award was made.