THE INDUSTRIAL TRIBUNALS

CASE REF:    300/10IT

CLAIMANT:	Edward Glenn

RESPONDENT:	Resource (NI) Limited

DECISION

The unanimous decision of the tribunal is that the claimant was not unfairly dismissed and did not suffer any breach of contract by the respondent.  The claim is therefore dismissed.

Constitution of Tribunal:

Chairman:	Miss E McCaffrey 

Members:	Mrs E Gilmartin
	Mr J Hughes

Appearances:

The claimant was represented by Mr William Young.

The respondent was represented by Mrs Kathryn McCormick of the Engineering Employers Federation Northern Ireland.

The Issues

1.	The issues which the tribunal had to decide were as follows:-

	(1)	Was the tribunal satisfied that the respondent had demonstrated that the reason (or if more than one, the principal reason) for the claimant’s dismissal was that he could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under a statutory provision? 

      	(2)	If the tribunal was not so satisfied, did they believe the claimant had been dismissed for another reason, thus rendering his dismissal unfair?

(3) 	Did the claimant suffer a breach of contract by the respondent’s behaviour in 

		(a)	The respondent failing to suspend him when he was accused of a disciplinary offence in September 2009;

		(b)	Failing to apply “due process” in relation to the disciplinary matters;

		(c)	Failing to allow the claimant to return to work after the disciplinary matters were completed in October 2009.

The Facts

	2.	The tribunal heard evidence from Mr Bryson, Contract Manager, for the respondent, Mr Barlow who dealt with the claimant’s disciplinary hearing, Ms Jennifer Robinson, Contract Assistant, and Mr Phil Parks a Service Lead with the respondent company.  At the outset of the hearing the claimant was not present.  Although he subsequently did attend before the case commenced, the claimant decided not to give evidence.  Accordingly the tribunal has not had the benefit of hearing evidence from the claimant on the issues in this case.

2.1	The claimant was employed as a security officer by Federal from 17 July 2003 and was posted at Ballynafeigh Police Station in Belfast.  His employment transferred to the respondent company by virtue of the Service Provision Change (Protection of Employment) Regulations (Northern Ireland) 2006 on 27 July 2009.  The claimant was subsequently dismissed by the respondent on 15 December 2009.

	2.2	All security officers working within the security industry were obliged to obtain an SIA licence to complete their duties with effect from 1 December 2009.  In order to hold this licence security offices had to complete and pass the relevant training in addition to paying a licence fee.  The licence was valid for three years.  During 2008 and 2009 Federal (and subsequently the respondent company) sent at least four mail shots to their staff pointing out the necessity to obtain a SIA licence.  The mail shot which had been sent to all employees was reproduced to the tribunal.  That mail shot reminded staff about the necessity to complete the training.  The notification about the free training course was headed “IMPORTANT” and set out in capital letters.  At the end of the notice were the following two sentences, “Remember it is your responsibility to have your SIA licence before 1st December 2009.  Without a licence you cannot be employed in one of the licensable roles.”

2.3	A note had been put on the payslips issued in May 2009, highlighting that important information in relation to future work was enclosed.  The staff had subsequently been sent a letter dated 17 September 2009 which set out the requirements for the SIA licence and indicated: “Any failure to comply with these requirements will jeopardise your continuing employment with the company…..Failure to hold a valid SIA licence from 1st December 2009 shall result in you not being able to operate within the security industry or indeed within Resource tm.” 

                2.4	The respondent arranged to provide training for members of staff and encouraged them to take up this offer.  However, they required their employees to apply for and pay for the licence themselves at a cost of approximately £240.00.  The reason  given by the respondent was that the licence was personal to the individual, and if they changed jobs at some point they could take the licence with them.  The respondent company did introduce a scheme by which employees could pay for the licence at the rate of £12.00 per fortnight deducted from their wages.  The respondent company carried on with this scheme when they took over the contract. In relation to the completion of training by 1 December 2009, Mr Barlow’s evidence was that of the 348 staff employed by the respondent in a security guard role, only about 12 had not completed the training, most of whom were in their late sixties and did not think it worth while to pay for a licence for only one or two years’ work.

2.5	After the transfer of the PSNI security contract from Federal to Resource (NI) Limited, responsibility for overseeing training passed to Mr Brian Barlow.  Mr Bryson however was aware from a couple of conversations he had had with the claimant that the claimant was reluctant to do the training.  The claimant’s comment to Mr Bryson was that he wasn’t being taxed again to work.  Mr Bryson had asked staff at Dundonald Police Station, where the head office was located, to ring up guards and remind them to book their training course.  When he checked with Stephen McCombe at Dundonald, he said that the claimant was still refusing to do the course.

2.6	On 18 September 2009 Mr Bryson received a phone call from Chief Superintendent Maguire’s Staff Officer and was asked to attend an urgent meeting regarding security at Ballynafeigh Police Station.  That meeting concerned the fact that Chief Superintendent Maguire had called at Ballynafeigh Police Station that morning and had been able to drive straight into the complex without being challenged by security officers.  He then advised Mr Bryson that he sat in his car, talking on the phone for about five minutes.  He then went to the temporary enquiry office to find the respondent’s guard- who was the claimant- engrossed in tennis on the television.  The Chief Superintendent indicated that the guard still didn’t challenge him and he had to identify himself as the Area Commander.

2.7	Mr Bryson spoke to the claimant in private and informed him that there would have to be an investigation about this matter.  Mr Bryson then reported the matter to Mr Parks for investigation and on the 21 September he received an email from the PSNI asking that the claimant be removed from site.  This was done, but the following day the claimant phoned in sick.  He was on sick leave from 21 September until 27 October and received statutory sick pay during this period.

	2.8	In the meantime Mr Parks had been requested to investigate the incident which he did.  A disciplinary meeting was arranged when the claimant returned from sick leave and was to be conducted by Mr Barlow.  Mr Barlow said that when he spoke to the claimant by telephone, to rearrange the appointment for the disciplinary hearing, he asked the claimant about his SIA licence.  The claimant’s reply was to ask who would be paying for it and would it be the respondent.  Mr Barlow indicated that the company would not be paying, that the licence would be the claimant’s personal property and it was his responsibility to purchase it.  The claimant’s response was that he would not be paying for it.
2.9	A disciplinary meeting was held with the claimant on 18 November 2009.  This meeting was conducted by Mr Barlow.  The outcome of that was that the claimant was given a written warning which was to remain on his record for a period of one year.  He was advised of his right to appeal.  At the end of the meeting, Mr Barlow asked the claimant if he was intending to apply for his SIA licence and the claimant advised that he was not.  Mr Barlow indicated that he thought it was a good opportunity to ask the claimant about this when he was there in front of him.  Mr Barlow asked the claimant if he still intended to work and he said that he did.  Mr Barlow then explained to him that in order to continue working in security, he would need the licence.  He pointed out that the only non-licensable role which the respondent had available was at Belfast City Airport.  He asked the claimant if he had any objection to Mr Barlow passing on his details to the contract manager there and the claimant said that that would be fine.  Mr Barlow did not minute this part of the meeting because the main part of the disciplinary meeting was then at an end, but he indicated that he did pass the claimant’s details to the manager, Mr Duffy, at Belfast City Airport.

	2.10	Mr Barlow also said to the claimant that he would have to see about getting him back to work and asked if he would contact Dundonald.  Mr Barlow’s explanation for mentioning this was that he wasn’t sure whether the claimant was suspended or not but that he knew he had been removed from Ballynafeigh Police Station and therefore knew that he was not at work.  It transpired that the claimant had not been back at work although his sick line had expired on 27 October 2009.  Mr Bryson’s explanation for this was that there was an automated rostering system and that following the instruction to have the claimant removed from Ballynafeigh Police Station, his name would have been removed from the roster for that station and then removed from the rostering system when he went on the sick.  On his return from sick leave, he had “slipped through the net” and had not been notified of shifts.  He said that the claimant had not been in contact with the Dundonald office either to seek directions as to where he was to go to work.  It was the evidence of both Mr Bryson and Mr Parks that there would have been no difficulty in the claimant going to work at another police station, as they always needed people to “back fill” by covering for other staff members who were absent on sick leave or on holiday.  Once a permanent position came up in another police station, he would have been redeployed to that post in the greater Belfast area, provided that he had completed his SIA licence.  The claimant however had not contacted Dundonald to arrange for any shifts, which seems strange as he had not been formally suspended but he was not being paid either.

	2.11	Mr Parks sent the claimant a letter dated 4 December 2009, inviting him to come to a meeting to discuss his failure to obtain his SIA licence.  The body of the letter pointed out that failure to hold a valid SIA licence from 1 December 2009 would result in the claimant not being able to operate within the security industry or indeed within the respondent company.  It referred to the meeting on 18 November, when the claimant indicated that he would not be undergoing the training.  The letter finishes off:

		  “The meeting will be attended by Phil Parks and a note taker.  You have the right to be accompanied at this meeting by an accredited trade union official or work colleague.  One possible outcome of this meeting could lead to disciplinary action and may eventually result in termination of your employment.”

2.12	When the claimant went to meet Mr Parks on 11 December, they had a discussion about the letter of 17 September 2009 which the claimant said he had not received.  He did not deny having received the earlier mail shots, or having been spoken to about doing the training for his SIA Licence However, Mr Parks then asked the claimant about the conversation he had had with Brian Barlow and the claimant’s reply was “I don’t see why I have to pay to do my job.”  Mr Parks again asked the claimant about doing the training and the claimant refused.  Mr Parks again asked him about a job at Belfast City Airport and the claimant agreed that he had received a message from the manager at Belfast City Airport and that he would phone him.  Mr Parks emphasised to the claimant that he couldn’t be employed in a licensable role without a licence and that it was illegal for the company to employ the claimant unless he took the job at Belfast City Airport.  The claimant subsequently spoke to Mr Parks by telephone, when Mr Parks phoned him, about an appeal letter he had received against the written warning imposed by Mr Barlow.  During that conversation Mr Parks asked the claimant if he had spoken to Ian Duffy about the City Airport position.  The claimant replied that he hadn’t as it was only part-time and was of no use to him.  Mr Parks then referred him to the meeting they had had on 11 December where they had discussed that if he didn’t have his SIA licence the respondent company would not be able to employ him and that he would have to write to him to advise him of this.  Mr Parks asked the claimant if there was any point in continuing with his appeal, to which the claimant replied, “No.”

2.13	Both Mr Barlow and Mr Parks indicated that if the claimant had shown any willingness to undertake the training for his SIA licence they would have got him on a training course straight away.  Mr Parks indicated that members of staff who had completed their training and applied for their licence but hadn’t received it by 1 December 2009, remained in employment as the company was an approved contractor and was able to continue to use them until the full licence was issued, under a special dispensation.  Employees who had not yet reached that stage were suspended until their licence application was processed.  In his view therefore the claimant could have remained in employment if he had undertaken the training.

Relevant Law

 3.    	The relevant law in relation to this matter as set out in the Employment Rights (Northern Ireland) Order 1996 which gives protection against unfair dismissal.  In this case the relevant article is Article 130 which provides as follows:-

“130 – (1) 	In determining for the purposes of this Part whether the dismissal of an 			employee is fair or unfair, it is for the employer to show -  

(a)	the reason (or, if more than one, the principal reason) for the dismissal; and

(b)	that it is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2)	A reason falls within this paragraph if it – 

                        		(d) 	is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under a statutory provision.”

3.1   	The respondent’s representative also referred us to Harvey section D1, paragraph 1805 and following.  Paragraph 1806 provides as follows:-

“In order to satisfy the reasonable in this test, the employer may have to consider:

-	offering the employee any alternative work that is available;
-	alternative methods of doing the work which would not be unlawful, eg using    
-	public transport in a driving case; and 
-	any alternative scheme proposed by the employee. 

	If the various possibilities are impracticable or the expenses involved in wasting man hours or additional travelling costs are too high then the dismissal is likely to be regarded as unfair.  The employee’s particular circumstances should be considered, for example the length of service.”

Decision

4.     	The claimant’s representative alleged that the claimant had not been dismissed because of his failure to obtain an SIA licence, but instead because of the disciplinary hearing and his withdrawal from Ballynafeigh PSNI station at the request of Chief Superintendent Maguire.  It was not disputed that the claimant was removed from Ballynafeigh Police Station at Chief Superintendent Maguire’s request.  However, the respondent’s witnesses gave evidence that the claimant could have been redeployed at another police station and Mr Parks even indicated that it was possible that the claimant could have been redeployed at Ballynafeigh although a special case would have had to be made to Chief Superintendent Maguire to allow this.  The claimant had been given a written warning in relation that incident, but his job was not in immediate danger.  It appeared much more the case that the claimant’s job was in danger because he had not undertaken proper training.

4.1   	The tribunal is satisfied that the respondent took detailed and comprehensive steps to provide training for their employees during 2008 and 2009 and that the claimant not only received the various mail shots which were sent out to him, but was also approached personally by Mr Bryson, by staff at Dundonald and by both Mr Barlow and Mr Parks.  Each of them encouraged him to undertake the training and pointed out the likely consequences of his failure to do so, namely that his job would be in danger.  The claimant appears to have taken a determined and consistent approach that he would not undertake the training.  Both Mr Barlow and Mr Parks gave undisputed evidence that the claimant had been referred to Mr Duffy at Belfast City Airport to undertake duties there which did not require the SIA licence.  The claimant turned down this offer on the basis that it was only part time, and as such was of no interest to him.  In these circumstances the employer had no option but to terminate the claimant’s employment.  They could not continue to employ him without being in breach of the law.

4.2  	The unanimous view of the tribunal is that the claimant was fairly dismissed by the    respondent because the principal reason for dismissal was that they could not continue to employ him as he did not hold as SIA licence as of 1 December 2009.

4.3  	The claimant’s representative alleged that the employer had breached the contract in that they had failed to suspend the claimant from his job when he was removed from Ballynafeigh Police Station.  This is a most unusual proposition.  The tribunal is not aware of any obligation whatsoever on the part of an employer to suspend an employee who is the subject of disciplinary proceedings. Indeed, in many cases it would be considered in the employee’s interest not to be suspended but to be able to remain at work.  The claimant’s representative also suggested that there was a breach of contract and a lack of due process in the disciplinary procedure and in the procedure leading up to the claimant’s dismissal in mid December 2009.  We do not agree.  The statutory dismissal and disciplinary procedures set out in the Employment (Northern Ireland) Order 2003 do not require that meetings be identified as disciplinary or investigatory meetings, as the claimant’s representative suggested.  Indeed, the meeting held with the claimant on 11 December was not a disciplinary meeting.  What was at issue was not a disciplinary matter, but the claimant’s failure to obtain his SIA licence and the impact that that would have on his continuing employment with the respondent. The letter clearly sets out the position and refers to previous discussions with the claimant and the previous information given to him.  It was never suggested on behalf of the claimant that he was not aware of the necessity to obtain a SIA licence.  Indeed, given the number of mail shots and the number of conversations the managers had had with the claimant, it is evident that he was well aware of the requirement to have an SIA licence but simply refused to undergo training and to obtain the licence.  In these circumstances we do not consider that there was any breach of process either in the disciplinary procedure which was followed in October 2009 or the process leading up to the claimant’s dismissal in December 2009.

4.4      Finally, the claimant’s representative alleged that there was a breach of contract in that the claimant had not been allowed to return to work in November 2009.  Initially the claimant’s claim form claimed unlawful deductions of wages, and the respondent has since paid the claimant notice pay and pay for the month of November and December 2009.  There is therefore nothing outstanding and due to the claimant as far as this is concerned.  While we agree that the claimant “slipped through the net” in not being rostered for work, it is also clear that the claimant did not contact his employer to ask or enquire about work.  Accordingly we do not find that there is any breach of contract as far as this is concerned.

4.5    	In light of all of the above, we find that the claimant was fairly dismissed by his employer because to continue to employ him would have meant that both the employer and the employee were in breach of a statutory requirement and therefore it was not possible for the respondent to continue employing the employee.  The claim of unfair dismissal and breach of contract is dismissed.

Chairman:

Date and place of hearing: 26-27 July 2010, Belfast	

Date decision entered in the register and issued to the parties :