Employment Tribunals

Case Number: 3300352/2022 1 EMPLOYMENT TRIBUNALS Claimant Respondent Mr B Oni v Pace Security Services Limited Heard at: Watford (In person) On: 1 December 2022 Before: Employment Judge Forde Appearances For the Claimant: In person For the Respondent: Mr P Bradley, HR Consultant JUDGMENT 1. The claimant’s claim of constructive unfair dismissal is unfounded and is dismissed. REASONS Introduction 1. The claimant, Mr Oni, was employed by the respondent, Pace Security Services Limited as a Security Officer and Fire Marshal. His employment ended on 4 January 2022. 2. The circumstances of this claim arise from events that took place on 27 November 2021 when the claimant was working in the capacity of a fire marshal located at the Quintain site at Wembley Park. The claimant was discharging his duties on behalf of the respondent who in turn was contracted to provide services to Quintain in relation to fire monitoring duties imposed upon it by statue. 3. The claimant states that he was subjected to an unfair investigation and suspension as a direct consequence of the allegations made against him by Quintain on or around 27 November. 4. The respondent contests the claim. It says that having had issues raised with regards to the claimant’s conduct and performance at its site and following a request by Quintain to remove the claimant from the site, the respondent had no option but to remove the Mr Oni from the site pursuant to Quintain’s request. Preliminary matters 5. The hearing had been listed for two days. At the outset of the hearing I indicated to the parties that it was my view that the hearing would last no Case Number: 3300352/2022 2 more than one day. Mr Read, the respondent’s Operations Manager, was identified as a witness in the proceedings but was not in attendance at the tribunal at the start of the hearing. He later attended the tribunal to give evidence, the detail of which is set out in brief in this judgment. 6. Thereafter, the parties agreed a series of facts which shall be set out below. Issues for the tribunal to decide 7. It was clear and agreed that the claimant was pursuing a claim of constructive unfair dismissal pursuant to s.98(1) of the Employment Rights Act 1996 on the basis that there had been a breach of the implied duty of mutual trust and confidence by the respondent. The claimant asserts that the breach he describes as forming the essential part of his claim was so serious that it went to the root of his contract of employment rendering it incapable of performance and justifying his resignation which he tendered on 7 December 2021. Findings of fact 8. The relevant findings of fact are as follows. Where I have had to resolve any conflict of evidence, I indicate how I have done so at the material point. References to page numbers are to the agreed bundle of documents. 9. The claimant, Mr Oni, was employed by the respondent Pace Security Services Limited, for approximately three and half years until he resigned form his employment on 7 December 2021. Up to that point, the claimant was a well regarded and competent employee and had no disciplinary issues during his employment. 10. On 27 November 2021, while working as a fire marshal at the Quintain site in Wembley Park, the claimant left his place of work to have two breaks during the course of a 12 hour shift. It was the respondent’s case that the claimant was entitled to take breaks during the course of his shift and that those breaks were taken on site in a clearly defined area known to the claimant. The claimant’s position on this was that for a significant period of time preceding the 27 November, he was entitled to leave the point of his immediate observation and duties as a fire marshal and venture further into the site where there were located a Tesco and a McDonalds restaurant which he visited on each occasion where he is identified to have had a break. The respondent asserts that by travelling to the Tesco and to the McDonalds, the claimant was incapable undertaking his contracted duties and thereby the respondent was failing in its contracted duties to Quintain namely that the claimant was not observing the properties that he was duty bound to observe in his role as a fire marshal. 11. In evidence, the claimant sought to rely on his perception that he had not received suitable training as a fire marshal to enable him to conduct his duties lawfully. It seems to me that the direction of his evidence in this regard related to the fact that he seemed to suggest that he was not suitably qualified to undertake the role as a fire marshal. Whether he is or he is not qualified to undertake those duties seems to me to be largely irrelevant; the key point in issue is whether or not the claimant was entitled to take breaks in the way that he insisted before me that he was able to, namely that he Case Number: 3300352/2022 3 was able to depart his point of immediate observation namely the Quintain buildings and move over to a McDonalds or Tesco in order to have his breaks and obtain something to eat. Therefore, for the purposes of my judgment, I do not consider that the extent of his training is so far as it relates to him being a fire marshal is relevant to my considerations. 12. I find, on the balance of probabilities, that having received a report from Quintain that the claimant had departed his place of work in order to go to either a McDonalds or Tesco during the course of his working day that the respondent was entitled to investigate his conduct. Furthermore, it is clearly established law that an employer is entitled to suspend an employee if that suspension is either at the behest of its third party underlying client or if the employer wishes to conduct a disciplinary investigation. In this case, both of these two things apply. Accordingly, I find it was entirely appropriate for the respondent to have suspended the claimant pending the outcome of its disciplinary investigation. Furthermore, I see that there was very little that the respondent could do if its client, Quintain, insisted that the claimant was to leave its site and no longer work there. I note that the respondent recognised the potential difficulty that this would present to the claimant and offered him the opportunity of working at an alternative location, an offer which the claimant rejected. 13. Given that the essential issue for the tribunal to determine was whether or not the claimant was subjected to an unfair disciplinary process which includes a suspension and given my finding that it was entirely reasonable and proper for the respondent to have done so in light of the complaints raised by Quintain which I found to have been made out, that it follows tat the claimant’s claim of constructive unfair dismissal must fail. In short, I cannot identify a material breach of contract such that it would be capable of justifying the claimant’s claim of constructive unfair dismissal. It must follow that the claim fails. _____________________________ Employment Judge Forde Date: 20/12/2022 Sent to the parties on: 3/1/2023 N Gotecha For the Tribunal Office