Mr K Donkoh v ISS Facility Services Ltd: 2203685/2019

EMPLOYMENT TRIBUNALS

Case No 2203685/2019

Between

Mr K DonkohClaimant

ISS Facility Services LtdRespondent

Before

Employment Judge Elliott

Mr B Malik (instructed by counsel) for claimant

Date 4 February 2021

JUDGMENT

The Judgment of the Tribunal is that the claim for unfair dismissal fails and is dismissed.

REASONS

[1]This decision was delivered orally on 4 February 2021. The claimant requested written reasons. By a claim form presented on 26 September 2019 the claimant Mr Kwesi Donkoh brings a complaint of unfair dismissal. He also brings a claim for a redundancy payment. The claimant as employed as a security officer from 12 November 200718 until dismissal with effect on 24 July 2019.

[2]The respondent says that the claimant was dismissed for gross misconduct because of his use of his mobile phone on two occasions whilst on duty and that this was in contravention of their policy prohibiting such use.

[3]The claimant was represented by solicitors from 30 July 2020 to 25 January 2021. He was represented by counsel at this hearing. This remote hearing

[4]The hearing was a remote public hearing, conducted using the cloud video platform (CVP) under Rule 46. The parties agreed to the hearing being conducted in this way.

[5]In accordance with Rule 46, the tribunal ensured that members of the public could attended and observe the hearing. This was done via a notice published on Courtserve.net. No members of the public attended.

[6]The parties able to hear what the tribunal heard and see the witnesses as seen by the tribunal. From a technical perspective, there were no difficulties of any substance.

[7]The participants were told that is was an offence to record the proceedings.

[8]The tribunal ensured that each of the witnesses, who were in different locations save for the 2 respondent witnesses who were in the same location, had access to the relevant written materials. I was satisfied that none of the witnesses was being coached or assisted by any unseen third party while giving their evidence.

The issues

[9]The issues were identified at a preliminary hearing before Employment Judge Nicolle on 30 April 2020 and were confirmed with the parties at the outset of this hearing as follows:

[10]What was the principal reason for dismissal and was it a potentially fair one in accordance with sections 98(1) and (2) of the Employment Rights Act 1996 (“ERA”)? The respondent asserts that it was a reason relating to the claimant’s conduct.

[11]It is also an issue for the tribunal as to whether the claimant was redundant and whether he is therefore entitled to a redundancy payment. The claimant’s counsel said at the outset that this was no longer an issue for the tribunal to determine.

[12]If so, was the dismissal fair or unfair in accordance with ERA section 98(4), and, in particular, did the respondent in all respects act within the band of reasonable responses?

[13]On remedy: if the claimant was unfairly dismissed and the dismissal was procedurally unfair, what adjustment should be made to any compensatory award to reflect the possibility that he would still have been dismissed had a fair procedure been followed? See: Polkey v AE Dayton Services Ltd

1987 UKHL 8

;

[14]Would it be just and equitable to reduce the amount of the basic award because of any blameworthy or culpable conduct before the dismissal, pursuant to ERA section 122(2); and if so to what extent?

[15]Did the claimant, by blameworthy or culpable actions, cause or contribute to his dismissal to any extent; and if so, by what proportion and would it be just and equitable to reduce the amount of any compensatory award – see section 123(6) ERA?

[16]It is also an issue for the tribunal as to the length of the claimant’s service as to his start date and whether it was 1 October 2006 or 12 November 2007. After the claimant’s evidence had been given, it was accepted on his behalf that his start date was 12 November 2007 so this was no longer in issue. Witnesses and documents

[17]The tribunal heard from the claimant. For the respondent the tribunal heard from the dismissing officer Mr Richard Whitehouse and the appeal officer Mr Phil Parker.

[18]There was an electronic bundle of documents on liability of 154 pages and a remedy bundle of 124 pages.

[19]I had oral submissions from both parties. Neither party cited any case law.

Findings of fact

[20]The claimant worked for the respondent as a security officer. The respondent provides facilities management services throughout the UK. The claimant was based at a well-known investment bank in London.

[21]The clamant does not dispute that he was issued with the Employee Handbook and most recently reissued and signed by the claimant on 30 March 2019 (signature bundle page 106). The relevant provision of the Handbook under a section on Telephones said: “Personal mobile telephones are not to be used whilst on duty on any assignment, except in an emergency situation”. (Handbook paragraph 9.8, bundle page 71).

[22]It also stated in a separate paragraph in the same section (9.8): “Unauthorised use of any Company or Client’s telephone is considered theft, and must not occur, this is considered as gross misconduct and disciplinary action may be taken against you”. It was submitted by the claimant that the two matters were separate and that the reference to the client’s or company’s telephone was gross misconduct but that it does not say so in relation to use of personal mobile phones.

[23]In the section on the disciplinary procedure, there was a section headed “Gross misconduct, misconduct, including unsatisfactory performance” which set out a list of examples including: Unauthorised or inappropriate use of email, internet, social media or telephone, including company, personal and client equipment whilst at work” (bundle page 82). It also included as the final example “failure to adhere to the handbook or Site Assignment Instructions”. From this list I find that the reference to the use of “telephone” including “personal and client equipment” means that the use of a personal telephone whilst at work has the potential under the policy to amount to gross misconduct which could merit summary dismissal in appropriate circumstances.

[24]The claimant was issued with Assignment Instructions. They were at page 102 and at page 105 the claimant signed to acknowledge an updated version on 5 January 2019. This stated at page 103 “the use of personal mobile phones and stereos whilst on post is not allowed: they must be switched off and not visible on post. Messages can be retrieved and calls made or accepted only whilst you are on your break or you have permission to do so by the Security Line Manager”.

[25]The respondent’s client for the site at which the claimant worked took a strong line on the use of mobile phones at work by the security staff. On 23 August 2017 an email was set to all security offices stating: “any use of a personal mobile phone while on post: this includes making and receiving calls, texting or reading texts and browsing the internet may be dealt with in accordance with the company’s investigation and disciplinary process. This is especially pertinent when on a client facing role. …To clarify, the use of your mobile phone to check the time falls under the above restrictions…your mobile phone is not a replacement for a watch”. (email bundle page 96).

[26]On 7 June 2018 the respondent’s supervisors were instructed by email to take robust measures around the use of mobile phones on duty following a customer reporting a security officer using a mobile phone (bundle page 100). This was specific to the building in which the claimant worked. The claimant accepted in evidence that he received this email.

[27]At each meeting within the disciplinary processes referred to below, there were minutes taken by a notetaker and the notes appeared in the bundle.

[28]There were two incidents during which he admits in his ET1 that he used his mobile phone whilst on duty. The first was on 30 June 2019 and 11 July 2019. Incident 1: 30 June 2019

[29]The claimant was observed by two supervisors on 30 June 2019 using his phone whilst on duty.

[30]An investigation meeting took place on 30 June 2019, conducted by Security Supervisor Mr Rob McCall. The notes of that meeting started at page 108 of the bundle. During that meeting the claimant said it had fallen out of his pocket and he picked it up and he was examining it for cracks. He also said it was making a screeching noise so he tapped the screen to stop the noise. During the investigation meeting the claimant said he was aware of the policy on phone usage. Mr McCall had viewed the CCTV footage and he told the claimant that he could be seen using his phone for 15 minutes. The claimant was twice given the opportunity to view the CCTV footage but declined. He said he was not interested.

[31]Mr McCall prepared an investigation report on 30 June 2019, page 111. This stated that the CCTV footage showed the claimant using his phone between 08:30 and 08:45 in front of cleaning staff and a member of the client. The claimant was seen by Mr McCall and Ms Elena Todorova of the respondent and was spoken to about the use of his phone. Mr McCall considered that there was a disciplinary case to answer.

[32]The disciplinary hearing in relation to this incident took place on 16 July 2019. The claimant was invited to the hearing by letter dated 11 July 2019 (page 114). It set out the disciplinary charges as unsatisfactory standards of work performance, failure to devote the whole of his time and attention to the business during working hours, unauthorised use of the telephone while at work and failure to adhere to the Handbook or Assignment Instructions. The claimant was told that his employment could be terminated if he had an active final warning or if it was considered to be gross misconduct. The claimant was informed of his right to be accompanied. The tribunal’s findings in relation to that hearing are set out below. Incident 2: 11 July 2019

[33]On 11 July 2019 at 21:56 hours, the Duty Manager Mr Ashaf Haque said he saw the claimant on his mobile phone on the reception desk at work reading a Ghanaian news website. Mr Haque reported this to Supervisor Mr Anthony Park by email at 23:40 hours that same evening (bundle page 118). He reported that he watched the claimant for two minutes scrolling on his phone on a Ghanaian news website until he tapped on the glass at the desk. Mr Haque said he raised this with the claimant who said “I should not be using my phone”. Mr Haque told the claimant that he would inform his supervisor. Mr Haque also said that the claimant pleaded with him not to take the matter forward. In evidence the claimant did not disagree with anything said by Mr Haque in that report. I find it was an accurate report of what was witnessed by Mr Haque.

[34]The investigation meeting took place on 12 July 2019 conducted by Security Supervisor Mr Anthony Park. The notes began at page 120 of the bundle. The notes were signed by the claimant on 13 July 2019 – he accepts this. The claimant told Mr Park that he had received information from his wife that his father had died and this is why he was looking at his phone, to check to see if he had received a message that his father had died. The claimant’s evidence to the tribunal was that one of the cleaners on site said that his wife had given her a message to pass to him that his father had passed away “back home” in Ghana and that all attempts to contact him by phone had failed. The claimant acknowledged during that investigation meeting that he was aware of the policy about the use of mobile phones at work. He said he was under pressure and in shock and that is why he was looking at his phone. The claimant accepts that he signed the notes of this meeting.

[35]Mr Park reviewed the CCTV footage for 21:00 to 22:00 on 11 July 2019 and saw the claimant looking at his phone throughout that hour.

[36]Mr Park produced an investigation report on 14 July 2019 (page 123). In his report he said that the claimant knew the procedures and what was required of him at work and that Mr Haque stood in front of the claimant for over a minute while the claimant was on his phone and that the claimant was “oblivious to this fact, thus putting the building and its occupants’ safety in jeopardy”. Mr Park also referred to the previous incident on 30 June 2019. The claimant was asked if there was anything incorrect or that he did not agree with in Mr Park’s report and he said he could not think of anything. Mr Park said he saw the claimant on CCTV on a phone for about an hour before Mr Haque arrived (page 125). Disciplinary hearing on 16 July 2019 for incident 1

[37]The disciplinary hearing in relation to the 30 June 2019 incident took place on 16 July 2019. The disciplinary officer was Mr Haque. At the hearing the claimant said that he knew that he should not be using a mobile phone whilst on post, but only during the breaks in the staff room. The claimant said he was not in a client facing area and that he had been checking his phone for damage.

[38]Mr Haque asked the claimant if he had anything to add and the claimant said he was “duty conscious” and did all his duties. Mr Haque adjourned for 15 minutes before reaching a decision. He reached the decision that even if the claimant had dropped his phone, he had the opportunity to go to the staff room and 10-15 minutes was far too long to be sitting there with his phone in his hands.

[39]He said he would impose a final written warning for 12 months. The claimant said: “We are all human beings and if something like that happens you get scared and it is difficult to take a quick decision. I will plead to you to look at this decision again”. Mr Haque declined to change his decision and gave the claimant a right of appeal. The claimant asked about the second incident and Mr Haque said that this was only about the first incident.

[40]The final written warning was issued by letter on 16 July 2019, pages 133- 134. The claimant did not exercise his right of appeal. Disciplinary hearing on 24 July 2019 for incident 2

[41]On 18 July 2019 Senior Security Officer Mr Richard Whitehouse wrote to the claimant inviting him to a disciplinary hearing in respect of the second incident (page 135). The claimant accepts that the letter was delivered to him by hand by one of the security officers and I find that it was and he was notified of the second disciplinary hearing. There was a suggestion in evidence that the claimant thought that the hearing on 16 July 2019 was for both incidents but I find that the claimant was clear that it was not. Mr Haque told him that the hearing on 16 July was for the first incident only and the claimant does not dispute receiving the invitation to the second disciplinary hearing.

[42]It was put to Mr Whitehouse that the two incidents of 30 June and 11 July should have been rolled up into one hearing and that would have been fairer to the claimant. Mr Whitehouse denied this and said that Mr Haque was the disciplinary officer for the first incident and a witness of fact on the second so it was considered fairer to the claimant to separate the two disciplinaries.

[43]The invitation letter of 18 July set out the disciplinary charges as unsatisfactory standards of work performance categorised as misconduct, failure to devote the whole of his attention to the company business, categorised as misconduct and unauthorised and inappropriate use of email, internet, social media and telephones. This was categorised as “Gross Misconduct (current final written warning)”.

[44]During the disciplinary hearing it was put to the claimant that he was looking at Ghanaian news websites on 11 July 2019 and the claimant said in the hearing that he was looking at his messages.

[45]Mr Whitehouse asked the claimant whether he was saying that Mr Haque was lying. Mr Whitehouse viewed the CCTV, that the claimant had been on his phone, Mr Haque could be observed coming in and that the claimant did not look up and acknowledge the manager. Mr Whitehouse could not see on the CCTV the claimant’s wife arriving at the site to deliver a message. It was accepted in submissions for the claimant that there were inconsistencies in the claimant’s account of the circumstances on 11 July. It was suggested in submissions that Mr Whitehouse was “irritated” with the claimant. Given that it was accepted that the claimant gave inconsistent accounts for his reasons for using his phone on 11 July, it is understandable that Mr Whitehouse would have a felt degree of frustration in his efforts to get to the truth of the matter.

[46]The claimant told Mr Whitehouse that he had a good, clean disciplinary record. Mr Whitehouse told the claimant that he had a previous final written warning. The claimant accepted this and said it was five years ago. It was not for phone use.

[47]The claimant said that if he had to do anything on his phone he would normally ask his supervisor but “shock made him do it”. He said he was “traumatised”. Mr Whitehouse told the claimant that Mr Haque had observed him looking at news websites. The claimant denied this yet in evidence to this tribunal he said he did not disagree with anything said by Mr Haque in his report of the incident.

[48]The claimant asked Mr Whitehouse to consider his length of service, around 11 years and 8 months. Mr Whitehouse took the view that the claimant’s long service meant that he knew the rules very well. He was not new to the respondent or to this particular contract. Mr Whitehouse said that the claimant had been on the contract longer than himself and in his view the claimant had no uncertainty as to what the rules were.

[49]Mr Whitehouse adjourned for 15 minutes to make his decision. He said that the claimant was clear on the policy before his first disciplinary hearing for phone misuse, that he was awaiting an invitation to a disciplinary hearing for the first incident when he was caught again 2 weeks later. He said if the first disciplinary officer had known about the second incident the outcome was likely to have been more severe.

[50]He said that the claimant had the option to inform his supervisor if he needed to use his phone and had acknowledged this; that he was so engrossed in his phone that he did not notice the manager observing him and not even when the manager walked right up to him. Mr Whitehouse picked up the inconsistency between the claimant saying his wife had been to the building and given a message to inform him of some bad news but no-one had been observed on the CCTV. Mr Haque, the manager, said he saw him looking at news websites and watched him for two minutes. The claimant had alleged in the disciplinary hearing that Mr Haque was not telling the truth. The claimant also said that the typed minutes he signed of the investigatory meeting were not accurate. The dismissal

[51]Mr Whitehouse found all three disciplinary counts proven and summarily dismissed him for gross misconduct and gave his reasons at the end of the disciplinary hearing after his adjournment.

[52]The dismissal letter was at page 141 of the bundle and confirmed the reasons for dismissal as follows:• That the CCTV clearly showed you continually on your phone for the hour you were on duty at the reception area.

• That the CCTV shows that for both hours that you were on duty at the reception no-one other than the Security Manager who found you on your phone came to see you.

• That you know and had confirmed via signing several documents that you understood the ISS and [client] policy for the misuse of phones on post.

• That you were already awaiting a Disciplinary Hearing for the same offence committed two weeks previous.

• That you confirmed that you could have asked your Supervisor to relieve you to use the phone but chose not to.

• That you lied about what you were using your phone for, and then subsequently accused the Security Manager of lying regarding what he saw you doing with your phone.

• You tried to imply that the minutes that you signed and dated were not the minutes of your investigation meeting.

[53]Mr Whitehouse’s evidence (statement paragraph 8) was that it is really important that security officers do not use their mobile phones on duty for a number of reasons:(i) it diverts their attention from their primary role of protecting the employees and property of the client,

(ii) it creates a negative impression to the users of the building

(iii) it is potentially damaging to the reputation of the respondent and

(iv) it is a matter that the client is focussed on.

[54]The claimant was given a right of appeal. The appeal against dismissal

[55]The claimant exercised his right of appeal by letter dated 1 August 2019 (page 143). His grounds of appeal were that he had not been given the final written warning by the date of the second incident so there was no fresh incident of misconduct. He asked for 13 years of service to be taken into account, although his length of service was slightly shorter than that.

[56]The appeal took place on 6 August 2019 before Mr Phil Parker, an Account Director. It was not a rehearing but a review of the decision to dismiss and the process leading to it. The notes of the appeal hearing were at page 147. Mr Parker told the claimant that both his cases were dealt with individually and dealt with separately. He explained that the second incident resulted in dismissal and his decision was that the process was fair.

[57]The appeal outcome letter was dated 15 August 2019 at page 150. Mr Parker upheld the decision to dismiss for the following reasons, taken from the letter: “1. Your appeal was based on your premise that procedure had not been followed in that you were disciplined for two separate incidents and should have had one discipline meeting dealing with both incidents as they were so close together. I explained that our procedure is independent of each incident allowing fair judgement based on facts for the individual case and without knowledge of other case details to take place. 2. You stated that you thought the sanction for the first incident, a final written warning, was also dealing with the second incident at the same time. I explained that it was made clear at the time of the first incident disciplinary meeting that it was only that case that was being dealt with, and the minutes show this was stated and that you asked the question and received the same answer. Therefore, it was made clear each case was being dealt with separately and independently. 3. The use of mobile phones while on security post is forbidden. This policy is made clear within the security officer handbook for ISS, the Assignment instructions for the contract which you have signed, the front of house standards instruction which you are aware of and Supervisors instruction. Having been on the contract for 13 years, you accepted that this policy was known by you and yet still were found using your phone on post on two separate occasions. 4 The sanction issued is commensurate with two separate misuse of phones while on post disciplinary cases, within a 12-month period, as has been implemented on previous cases. The case was in line with policy and procedure for ISS.”

[58]The claimant stated in his ET1 (bundle page 8) that his phone records and CCTV would corroborate that he did not use his phone so he could not see how his dismissal was justified. He did not maintain that position at this hearing.

[59]The claimant said he was not given the opportunity to “heed” the first warning before he was dismissed. The respondent’s position was that the claimant was aware of the policy and whilst the first incident was part of a formal disciplinary process, he used his phone on the second incident. Employee X

[60]At page 153 of the bundle was a dismissal letter from Mr Whitehouse in relation to another employee referred to as Employee X, dated 12 October 2018. Employee X faced very similar disciplinary charges to the claimant in this case. He faced a disciplinary charge of using his mobile phone on shift. The letter was included by the respondent to show consistency of treatment.

[61]The reasons for dismissal for Employee X were as follows: 1 That the CCTV steady showed you continually on your phone for the hour you were on duty at the Mersey entrance. 2 That you provided no reason why you lied during your investigation meeting when asked by the Investigating Manager if you were using your phone whilst on duty at the Mersey entrance. 3. That you provided no reason when asked why you disregarded a managerial instruction to stop using your phone whilst on duty at the Mersey entrance, and continued to use it for another 20 minutes until the end of your duty at the Mersey entrance. 4. That for the remainder of the 20 minutes you shielded your phone with a piece of paper highlighting that you knew what you were doing was against ISS and contract policy. 5. That you continued to use your phone whilst on duty at the East entrance of PEG just over one hour later. 6. That you were already on a Written Warning for unauthorised or inappropriate use of e-mail, internet, social media or telephones including company, personal and client equipment whilst at work 7. That it is evidenced that you have been spoken to several times over the last six years, including a meeting of concern (October 2016), in regards to the use of your phone, the unsatisfactory standards of your work performance and the requirement to improve, and the expectations required of someone in your role. 8. That you have undergone at least 6 investigations and disciplinary hearings over the last 8 years regarding unsatisfactory standards of work performance, failure to devote the whole of your attention and abilities to the Company business and its affairs during your normal working hours. and unauthorised or inappropriate use of e-mail, internet, social media or telephones including company, personal and client equipment whilst at work, which have resulted in two written warnings and a ﬁnal written warning (contested by Fisher Meredith on your behalf but upheld by Paul Hare, ISS Account Director) to which no perceptible change in behaviour has brought about.

[62]Mr Whitehouse’s evidence was that the claimant in the present proceedings also used his phone for about an hour but that he did not fail to provide a reason, this claimant did give a reason. This was set out in the investigation report at page 125 which was in front of Mr Whitehouse at the hearing. Mr Park has viewed the CCTV footage and seen the claimant on his phone throughout the hour of 21:00 and 22:00. There was also the report of Mr Haque showing the claimant looking at news websites. No application was made by the claimant in these proceedings for the CCTV and I noted that the claimant has been legally represented for a large part of these proceedings.

[63]Mr Whitehouse also explained to the tribunal that if a security officer needs to use his phone whilst on duty he can refer the matter to his supervisor either by radio contact or by speaking to the supervisor. In the building in which the claimant worked, the supervisor was in the Control Room which was a matter of metres away. The supervisor can then make arrangements for cover for the officer who can then deal with his or her emergency.

[64]Employee X had been through 6 past disciplinary proceedings and investigations on matters over the last 8 years. It was not suggested that all these disciplinaries had been for misuse of his phone. Employee X worked on the same contract as the claimant.

The relevant law

[65]Misconduct is a potentially fair reason for dismissal under section 98(2)(b) of the Employment Rights Act 1996.

[66]Section 98(4) of the Employment Rights Act 1996 provides that the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee and

(b) shall be determined in accordance with equity and the substantial merits of the case.

[67]As is well known, the leading case of British Home Stores Ltd v Burchell

1978 IRLR 379

sets out three elements for a fair conduct dismissal. First, there must be established by the employer the fact of the belief by the employer in the guilt of the employee in relation to that misconduct. Second, it must be shown that the employer had in its mind reasonable grounds upon which to sustain that belief. And third, the employer at the stage at which he formed that belief on those grounds, must have carried out as much investigation into the matter as was reasonable in all the circumstances of the case.

[68]In relation to section 98(4) the EAT recognised the importance of consistency of treatment in Hadjioannou v Coral Casinos Ltd

1981 IRLR 352

. A complaint of unreasonableness based on inconsistency of treatment is only relevant in limited circumstances:a. Where employees have been led to believe that certain conduct will not lead to dismissal.

b. Where evidence of other cases being dealt with more leniently supports a complaint that the reason stated for dismissal by the employer was not the real reason.

c. Where decisions made by an employer in truly parallel circumstances indicate that it was not reasonable for the employer to dismiss

Conclusions

[69]In reaching my decision on this matter I reminded myself that it is not the role of the tribunal to substitute its decision for the decision of the dismissing officer Mr Whitehouse. It is not the role of the tribunal to “rehear” the disciplinary, but to consider whether the decision made by Mr Whitehouse on 24 July 2019 was reasonable.

[70]I find that the reason for dismissal was misconduct; that of the claimant using his mobile phone whilst on duty on the client’s premises.

[71]The claimant submits that dismissal did not fall within the band of reasonable responses open to the respondent. It was not disputed by the claimant in submissions that the use of the mobile phone whilst at work was contrary to the respondent’s disciplinary rules. It was accepted that it was against the rules but the issue was the weight that should be attached to this.

[72]I have found above that on page 82 of the bundle, the disciplinary procedures makes it clear that the use of a personal phone at work has the potential to amount to gross misconduct. These were rules that the claimant had been provided with and knew about.

[73]The claimant’s submission is that the respondent should have rolled up the two disciplinary incidents into one disciplinary hearing. It was accepted by the respondent that they could have done so but they chose not to. I have considered the claimant’s submission that it was procedurally unfair not to have rolled up the two matters. Mr Whitehouse gave the reason for not rolling them together as the fact that Mr Haque was the disciplinary officer for the first incident and he was also a witness of fact on the second. It was this overlap of personnel, namely Mr Haque, that caused them to separate the two.

[74]I am not aware of any requirement for the respondent to deal with separate disciplinary incidents in the same hearing. It may very often be convenient to do so and save time. I agree with the respondent’s submission that the respondent gave a cogent reason for doing so, namely the overlap of personnel in terms of Mr Haque. They separated the two matters in their minds to be fairer to the claimant. I find that whilst they could have joined the matters together, they were not obliged to do so and each disciplinary matter could stand on its own and be considered on its own.

[75]It is also material that in his decision making Mr Whitehouse did not treat the claimant as on a final written warning. He did not activate a final written warning in making his decision. He dealt with the 11 July incident on its own facts.

[76]He did nevertheless take into account the fact that on 11 July 2019 the claimant had a pending disciplinary case for the first incident so he was in no doubt that the claimant knew the rules and the seriousness of those rules when he used his phone on duty on 11 July.

[77]It was submitted for the claimant that Mr Whitehouse should have probed the report that the claimant fell to his knees in front of Mr Haque (see his email of 11 July 2019 above) when Mr Haque said he was going to report the matter and take it forward. There was no evidence that the claimant asked Mr Whitehouse to consider this at the disciplinary hearing or that he asked Mr Parker to consider this at the appeal hearing. Had this been material, it was open to the claimant to raise it on appeal.

[78]On the issue of consistency, it was accepted on the claimant’s submissions that it was not possible to make a direct and neat comparison with Employee X. Following Hadjioannou this was not a case on my finding where the claimant had been led to believe that such conduct would not lead to dismissal. The disciplinary procedure states that such conduct is capable of amounting to gross misconduct and he was aware of the rules and the disciplinary procedure.

[79]I have considered whether there was evidence of other cases being dealt with more leniently to support a complaint that the reason stated for dismissal was not the real reason. I am in no doubt as to the reason for dismissal being the phone use. I have also considered whether there were any truly parallel circumstances indicating that it was not reasonable for to dismiss.

[80]It is submitted for the claimant that it was outside the band of reasonable responses to dismiss for this incident on 11 July 2019 on its own. Employee X had been spoken to about a variety of disciplinary matters over the preceding six years and the circumstances of those conversations were not known. The only document that the tribunal had for Employee X was the ultimate dismissal letter. What is in common with the claimant and Employee X is the use of a telephone for around an hour whilst on duty resulting in dismissal and both were dismissed for this.

[81]Mr Whitehouse gave evidence as to the importance of the role carried out by the security officers. It is clear that being on a personal phone whilst on duty went completely against the purpose of this role. The claimant was fully aware of the rules and although on 11 July 2019 he had not received a disciplinary decision on the first incident, he was facing a disciplinary hearing.

[82]It was reasonable for Mr Whitehouse to take the view that the claimant was fully aware of the rules on 11 July and could have been under no misapprehension about what he was and was not required to do. Mr Whitehouse found that the claimant knew that he could have asked his supervisor to relieve him if he needed to use his phone in an emergency and he chose not to. He also took account of the fact that he considered that the claimant had not been truthful in his accounts of what happened.

[83]Although it was submitted by the respondent that lack of contrition could be taken into account where there is a discretion as to the sanction, relying on an example in the ACAS Guide on Disciplinary hearings that cited an employee who did show contrition, I took the view that Mr Whitehouse was entitled to take account of the inconsistencies in the claimant’s story and form a view that he was not being given an honest account by the claimant and that this was an exacerbating feature.

[84]In the circumstances, given the claimant’s full knowledge of the rules, the seriousness of which he understood as he had a pending disciplinary for the same issue and the length of the time he used his phone whilst on duty – being an hour which was contrary to the entire purpose of his role – I find that Mr Whitehouse took a decision that fell within the band of reasonable responses. Employee X had also used his phone on duty for a similar length of time and was dismissed. There is insufficient evidence to show what past disciplinaries or conversations took place with Employee X to put this within the limited categories envisaged in Hadjioannou and I therefore find that the dismissal fell within the band of reasonable responses and was fair.

[85]There was no obligation on the respondent to roll the 2 disciplinary matters together and they gave a cogent reason for not doing so. I find that the dismissal was procedurally fair.

[86]As such the claim for unfair dismissal fails and is dismissed.