Mr Emmanuel Ofori v , Lay Representative Group Employment Services Limited — 2021

Mr Ofori worked as a Security Officer for Group Employment Services Limited at Imperial Place. On 3 June 2020, during a 12-hour night shift, he left the site without authorisation to meet a friend to collect cigarettes. The tribunal accepted that he knew he was not allowed to leave site, that he left the main gates open, and that Ms Donovan, the client’s Facilities Manager, found the gatehouse locked and in darkness while vehicles were waiting to enter. The tribunal also accepted the internal complaint, investigation, disciplinary and appeal papers as accurate records of what was said and decided.

On the unfair dismissal claim, the tribunal held that the respondent had a potentially fair conduct reason for dismissal under s.98(1) ERA 1996. Applying Burchell, it found that Mr Baker and Mr Paciolla genuinely believed the claimant was guilty, had reasonable grounds for that belief, and carried out as much investigation as was reasonably required in the circumstances. The tribunal also held that dismissal was within the band of reasonable responses under s.98(4) ERA 1996, including in light of the appeal decision which upheld dismissal on the basis of reputational damage as well as the claimant’s absence from the site.

On the wrongful dismissal claim, the tribunal found that leaving the site unattended in that role was repudiatory conduct under the principles in Macari and McCormack. It held that a lone-working security officer was required to remain on site to monitor access and protect people and property, and that the claimant’s departure to collect cigarettes meant he was not carrying out the core obligations of the job. The respondent was therefore entitled to dismiss him summarily without notice, and the contractual claim was dismissed.

On the Working Time Regulations claim, the tribunal refused the claimant’s application to amend the claim so that it would cover alleged denial of rest breaks throughout his employment, applying Selkent and noting the time-limit and prejudice issues. It therefore confined the complaint to 3 June 2020 and the days immediately before dismissal. The tribunal found that the claimant’s night shifts were 12 hours long so reg.12 WTR 1998 was engaged, but it found no evidence that any rest break on those shifts was denied or interrupted. It accepted that night-shift security officers were expected to self-manage breaks, that the claimant could take breaks away from the workstation, and that the reg.12/30 claim failed.