478_07IT
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Sampson Walker v ICTS (UK) Ltd [2008] NIIT 478_07IT (02 April 2008) URL: https://www.bailii.org/nie/cases/NIIT/2008/478_07IT.html Cite as: [2008] NIIT 478_07IT, [2008] NIIT 478_7IT |
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CASE REFS: 478/07
827/07
CLAIMANTS: Francis Sampson
Gary Walker
RESPONDENT: ICTS (UK) Ltd
The unanimous decision of the tribunal is that both claimants were unfairly dismissed. Compensation of £15,154.60 is awarded to the first-named claimant and compensation of £3,160.26 is awarded to the second-named claimant.
Constitution of Tribunal:
Chairman: Mr N Kelly
Members: Mrs McAuley
Mr Hall
Appearances:
The first-named claimant was represented by Mr M Heaney, Barrister-at-Law, instructed by Donnelly & Kinder, Solicitors.
The second-named claimant was represented by Miller McCall Wylie, Solicitors.
The respondent was represented by Mr P Moore, of Peninsula Business Services Limited.
The Issue
"Whether the summary dismissal of either or both claimants was an unfair dismissal contrary to Part XI of the Employment Rights (Northern Ireland) Order 1996."
Facts not in contention
Findings of fact
"He wasn't going anywhere. The painter was only going to the back door."
The CCTV coverage was also shown to Mrs Sampson. Both claimants stated in evidence that the CCTV was shown on Mr McCooke's computer monitor on his desk and that the screen was turned more towards him than towards each claimant. Each claimant stated that it was difficult to see what was going on in the CCTV recording. In any event, it would appear that the footage was only shown once and that the first-named claimant was not given a copy. Mrs Sampson told Mr McCooke that the Airport Police were the only ones who had trained her for that checkpoint and that they had told her that if someone remained in the security agent's view (having come airside) there was no need to re-screen that individual before that individual returned airside. Mr McCooke did not appear to challenge that proposition during the investigation meeting.
When it was suggested to her by Mr McCooke that the painter was passing from airside to landside (within the checkpoint) she replied:-
"He was only going to the back door."
"WATCH VIDEO FOOTAGE";
at the appropriate point in the record. It recorded in detail the discussion between Mr McCooke and the claimants as the CCTV footage was being watched. The tribunal can see no reason why the note-taker would have excluded such an important part of the content of each disciplinary interview or why she would have altered her approach to recording interviews in the brief period between the investigation interviews and the disciplinary interviews. The tribunal further sees no reason why Mr Nesbitt would have accepted an incomplete note of the disciplinary interviews. The record of Mrs Sampson's interview was signed by Mr Nesbitt and accepted as an 'accurate representation of the content of discussion during the disciplinary meeting'. The note-taker was not called by the respondent to give evidence to the tribunal to help it to resolve this conflict in evidence.
The tribunal therefore concludes that Mr Nesbitt did not, as he alleged, show the CCTV footage to the claimants during the disciplinary interviews.
Mr Walker is recorded as stating that he denied during the disciplinary interview that he had done wrong. He stated:-
"Have never done anything wrong."
However, a mere six lines later in the notes of the disciplinary interview, he is recorded as saying that:-
"I realise I have done wrong."
Mr Walker denied admitting guilt in his letter of appeal and further denied making that specific statement when he was shown a copy of the notes of the disciplinary interview for the first time during his appeal hearing. Mr Nesbitt maintained in evidence and under cross-examination that Mr Walker had accepted during the disciplinary interview that he had "done wrong". The tribunal notes the remarkable inconsistency between the two recorded statements during the disciplinary interview, the content of the investigation meeting and Mr Nesbitt's inaccurate recollection of the content of the disciplinary interview referred to above. Having observed the second-named claimant giving evidence, the tribunal concludes that it is highly unlikely that he said that he had realised that he done wrong during the disciplinary interview.
The landside/airside boundary was an issue which had been raised primarily by Mr Walker but also by Mrs Sampson at the investigation meetings. Mr Nesbitt was aware of the existence of this dispute and must have been aware that this was a key issue which should have been put plainly to Mrs Sampson and which should have been examined. Instead the disciplinary interview appears to have been a series of sometimes relatively lengthy statements by Mr Nesbitt covering a range of factors and punctuated intermittently by short interjections from Mrs Sampson. It was never put to the claimant that the dividing line between landside and airside was well-known, or that it had been delineated in any physical manner, or that it had been made clear in the checkpoint protocol or at any point in her training. At one point, after a particularly lengthy statement from Mr Nesbitt in which at least four separate points were made, the claimant stated:-
"We usually do a good job – just a bad day."
Mrs Sampson stated before the tribunal that she was at this point referring to the paint fumes, inconvenience and additional work caused by the presence of painters. The tribunal accept this explanation and do not regard this statement by the first-named claimant at a disciplinary interview as something which any reasonable employer in this context would have regarded as an admission of guilt.
The purpose of a disciplinary interview is to enable an employee to understand and to respond to the disciplinary charges which he or she is facing. (See Para 16 of the LRA Code of Practice for Disciplinary and Grievance Procedures). Ideally, each aspect of a disciplinary charge should be put to an employee and their response elicited. If several statements are made by the interviewer in succession without inviting a response separately to each point, it is likely to be extremely confusing to the employee. An employee facing the possibility of dismissal is entitled to a fair opportunity to put his or her case. The notes of the disciplinary interviews do not read as if Mr Nesbitt was concerned to get any response from the claimants and, in particular, any response to the core issue in relation to the painter which was the precise location of the airside/landside boundary in Checkpoint 1. In relation to the Air Traffic Controller, the core issue was whether the Air Traffic Controller had been kept under observation and yet an opportunity to view the CCTV footage was not given to either claimant during their disciplinary interviews, even though both claimants were clear that in their view the Air Traffic Controller had been kept under observation throughout.
"I will not make any decision now, will have a look at your and Gary's notes and I will reflect on what has been said but it is being treated as a very serious breach of security."
At that point, when Mr Nesbitt states that he had not made up his mind about the disciplinary charges, it is unclear who had decided that 'it was being treated' as a very serious breach of security. It was for Mr Nesbitt and for no one else, in the context of the disciplinary proceedings to determine, firstly, whether or not there had been a breach of security procedures and, secondly, whether any such breach of procedures was serious.
"Your failure to stick to the Department of Transport regulations has resulted in a very serious breach of security."
Both dismissals were on the basis that:-
(a) the Air Traffic Controller had been allowed to go from airside to landside and back again without being screened; and
(b) the painter had been allowed to go from landside to airside without being screened.
Paragraph 6 on Page 22 of the Employee Handbook provided by the respondent states that:-
"Our aim is to have the appeal as a complete re-hearing and reappraisal of all matters in order that the person who conducts the appeal can make an independent decision into the severity and appropriateness of the disciplinary action before deciding to refuse or grant the appeal."
(a) that he had been told by his then supervisor, Mr Trevor Kane, that the boundary between airside and landside was the rear door of the checkpoint; and
(b) that he had received no training for Checkpoint 1; and
(c) that the paint fumes had affected him.
Each letter stated:-
"We have taken into consideration what you have said but we must adhere to and not deviate from the procedures set in place by the Department of Transport to counter terrorist activity. Your failure to adhere to Department of Transport regulations resulted in a serious breach of security."
Relevant Law
"The use of the words 're-hearing' and 'review' albeit only intended as an illustration, does create a risk that Employment Tribunals will fall into the trap of deciding whether the dismissal procedure was fair or unfair by reference to their view of whether an appeal was a re-hearing or a mere review. This error is avoided if Employment Tribunals realise their task is to apply the statutory test. In doing that they should consider the fairness of the whole disciplinary process."
The court went onto say:-
"In saying this, it may appear that we are suggesting that Employment Tribunal should consider procedural fairness separately from other issues arising. We are not; indeed it is trite law that [GB equivalent legislation] requires the Employment Tribunal to approach its task broadly as an industrial jury. That means that it should consider the procedural issues together with the reasons for the dismissal as they have found it to be. The two impact on each other and the Employment Tribunal's task is to decide whether, in all the circumstances of the case, the employer acted reasonably in treating the reason they have found as a sufficient reason to dismiss."
Decision
"You are now entering a restricted zone."
It is perhaps significant that it did not say:-
"You are in a restricted zone."
Mr Walker gave evidence that after he had originally started work in Checkpoint 1 he had been concerned at his position between the hours of 9.30 pm and 10.30 pm on the late shift. Mrs Sampson went home at 9.30 pm and Mr Walker would have been working alone in the checkpoint until 10.30 pm when he was relieved by the night duty security agent. He asked Mr Trevor Kane, his then supervisor, how he could be screened as he moved back and forth past the archway metal detector alone and unobserved during this one hour period each day. Mr Kane told him that the boundary was in fact at the restricted zone exit door. That evidence was challenged by the respondent, but Mr Kane was not called to give evidence to rebut it. The checkpoint protocol was not produced and was not referred to in either the evidence-in-chief of the respondent's witnesses or in the cross-examination of the claimants' witnesses. The tribunal therefore concludes that the protocol did not specifically deal with this matter. The sign on the restricted zone exit door is consistent with the evidence of both the second-named claimant and the first-named claimant on this point.
If an employer is to dismiss somebody in these circumstances, it is incumbent on such an employer to make sure that the landside/airside boundary is clear and that it is clearly understood by all involved. It was agreed by all the parties that the boundary in the central search area in the main Airport building was at the archway metal detector. However it was also agreed that Checkpoint 1 is different from the central search area in some respects. It is an enclosed checkpoint building with an electronically locked rear door and with the added complications of responsibility for several sets of vehicle barriers. Even Mr McCooke, who was responsible for training security staff and Mr Nesbitt, the Operations Manager, did not appear to be entirely clear as to the precise position of the 'imaginary' line.
The tribunal notes the evidence of the claimants, that the painter who moved to the restricted zone exit door was screened at approximately 7.20 am but accepts Mr Walker's evidence that he did this automatically because the painter had himself put his paint in the x-ray tray on the x-ray conveyor belt.
In short, the tribunal concludes that the respondent did not act fairly in treating the movements of the painter as a basis for dismissal or indeed as a basis for any disciplinary action because the respondent had failed to make the landside/airside boundary clear. On the evidence before it, the tribunal concludes that Mr Walker had been told that this boundary was in fact at the restricted zone exit door and not, as contended by the respondent during this hearing, in the area of the archway metal detector.
Remedies
FIRST-NAMED CLAIMANT (MRS SAMPSON)
20 years x 1.5 weeks x £255 = £7,650.00
Loss of Statutory Rights = £ 310.00
Compensatory Award:-
36 weeks x £199.85 = £7,194.60
TOTAL £15,154.60
SECOND-NAMED CLAIMANT (MR WALKER)
Statutory Maximum of £280 x 2 = £560.00
Loss of Statutory Rights = £310.00
Compensatory Award:-
£219.23 x 14 = £3,069.22
Less P/T PSNI earnings:
£111.28 x 7 = £778.96 = £2,290.26
TOTAL £3,160.26
Chairman:
Date and place of hearing: 25 – 28 February 2008, Belfast.
Date decision recorded in register and issued to parties: