Mr M Wylie v Garrion Security Services Ltd: 4102799/2019
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4102799/2019Venue GlasgowHearing 17 and 18 June 2019
Between
Mr M WylieClaimantGarrion Security Services LimitedRespondent
Before
Employment Judge J HendryMr P Brown (instructed by Solicitor) for respondentDate 1 July 2019
JUDGMENT
The Judgment of the Employment Tribunal is that the claimant’s application for a finding of unfair dismissal does not succeed and is dismissed.
REASONS
[1]The claimant in his ET1 argued that he had been unfairly dismissed from his employment as a security guard with the respondents, that his employers had no basis on which to dismiss him for fighting when he had been attacked by another employee. He also raised the issue that a final written warning issued to him before the dismissal was ‘unjustified and fabricated’.[2]The respondents argued that the claimant had been dismissed fairly on the grounds of his conduct (gross misconduct).[3]At the start of the hearing, I noted that there had been no preliminary hearing in relation to this case despite the claimant being a party litigant. Accordingly, I spent some time at the outset explaining the hearing process including the giving of evidence and so forth to the claimant. I also gave the claimant an E.T. Z4 (WR) opportunity to explain what his position was in more detail as to why the dismissal was unfair as the ET1 was brief. The position he articulated was essentially that they should not have dismissed as he had been attacked by another employee, that the statements the employers relied on were inconsistent and that he should not have received an earlier written warning.[4]The case was set down for two days and witnesses were present. Neither parties sought a postponement of the hearing and were content to proceed. I explained to the claimant that as the hearing continued, I would do my best to guide him through it and answer any queries that arose. Mr Brown indicated, however, that if an issue arose that his two witnesses could not deal with then he reserved the right to object to that line of questioning and to possibly seek a postponement. As it turned out in the circumstances, he was required to do neither.[5]The Tribunal considered the Inventory of Joint Productions. It also considered a separate bundle of documents prepared by the claimant. It heard evidence from Ms Anne Boyle, the respondent’s HR manager and Mr Andrew Dickson, the respondent’s Finance Director and the dismissing officer. The claimant gave evidence on his own behalf.
Issues
[6]There were a number of issues for the Tribunal to consider essentially revolving around whether or not the respondents had acted within the band of reasonable responses in dismissing the claimant for fighting, whether they were entitled to rely on the statements they had obtained despite inconsistencies in them. The Tribunal also had to consider the issue of the final written warning and how it impacted on the decision. It was explained to the claimant that the Tribunal would have to be convinced that the issue of the warning was manifestly inappropriate before it could explore it’s issue further.
The facts
[7]The claimant has been a security guard at Ibrox Stadium since 29 July 2000. He has been employed by various entities latterly by Garrion Security Services Limited, a wholly owned subsidiary of Rangers Football Club. He is 47 years of age. He worked 60 hours per week. His net monthly pay was £1900. His hourly rate was £9.60.[8]The respondent company provides security for the football stadium and other facilities owned by Rangers Football Club. On matchdays, the personnel swells to about 560 security guards. There is a smaller ‘core’ of regular guards. The claimant was a member of the experienced full-time security staff. The employers have the assistance of a full time HR manager, Ms Anne Boyle, although she is employed by the football club.[9]The claimant’s line manager is Mr David Martin, Head of Security and Operations. Mr Martin works closely with Mr Robin Howe who is the Safety Manager.[10]The claimant was issued with a statement of main terms and conditions of employment (IJ 5 – 33). The claimant’s terms and conditions provided for a disciplinary and grievance procedure (clause 15).[11]The company has a disciplinary policy and procedure (IJ p34 – 38). The procedure provides for investigation of alleged disciplinary offences, the attendance of a companion/representative at hearings and an appeal. The procedure makes reference to gross misconduct (IJ p37). Examples of gross misconduct are given including:• fighting with physical assault on members of staff or the public Final Written Warning[12]At some point in 2018, difficulties arose in the relationship between the claimant and a security guard colleague, Janis Hopkins. The claimant complained to Anne Boyle about Ms Hopkins’ attitude just before Ms Hopkins complained about him.[13]On 28 May, Ms Hopkins emailed a colleague, Kimberly Turri, copying the email to Ms Boyle in relation to Mr Wylie’s complaint about her (C 1-B). She wrote: “Hi Kimberly, I have become aware of an email sent to you by one of my colleagues, sent 25 May. I did not know until recently that he had a problem with working with me. I always work to the best of my ability, and confident to seeing it is to an acceptable standard. I only realised after working the last couple of shifts with him that he had chosen to completely stop speaking with me even to pass on work related information. I did approach him regarding the [?] and he said, ‘lets just see Fiona’. He has in past conversations referred to Fiona as the devil and other derogatory remarks, he has also informed me that everyone is conspiring against him. I would like to advise that I am still happy to work with Mark on shifts as I have done nothing wrong, and do not want to be penalised and see less shifts because of his childishness, as my friendship with Fiona is none of his business. I must say however in my opinion from working with him over the last year or so, listening to his rantings about his ‘situation’ he clings onto the very edge of sanity.”[14]The reference to ‘Fiona’ was a reference to Fiona Glover another security guard who had been partnered by the claimant.[15]The difficulties in the working relationship were investigated and became part of a disciplinary process.[16]The respondent’s practice in relation to the disciplinary matters is to instruct an independent HR professional, Katie Douglas, to carry out the investigation. If there are grounds for disciplinary action, in her view, then she recommends that course of action to the respondents who then decide whether to carry out such action. In this situation, Ms Douglas carried out an investigation involving taking numerous statements from staff. She took a statement from a Mr Jon Vernon but did not include the statement in her Investigation Report as he did not witness anything. The claimant was not given a copy of the statement. The claimant subsequently discovered that Mr Vernon had given a statement and raised it with Ms Boyle who explained that it had not been used.[17]Ms Douglas recommended disciplinary action being taken against the claimant for his behaviour towards Ms Hopkins. The upshot was that David Martin, the claimant’s line manager, concluded that the disciplinary allegations had been upheld. The claimant vehemently disputed the allegations and the basis for the decision. The claimant received a final written warning on 8 August in the following terms: “Dear Mark Final written warning Following the disciplinary hearing held on 1 August 2018, a decision was taken to give you a final written warning under the disciplinary procedure. The reason for this final written warning is that your conduct has been unsatisfactory. The details of your misconduct are as follows: (i) You ignored Janis Hopkins while you were working on shift together (as alleged by Janis in a grievance email) in February and March 2018. You failed to assist Janice in coaching her in the role of static guard, as one would expect from the more experienced guard on duty. Janis Hopkins was embarrassed, humiliated and offended by your behaviour which meets the company’s decision of bullying.”[18]The claimant was also reminded of the standards of conduct that were expected of him and was given a final written warning to be placed in his personnel file for 12 months. The claimant was reminded that if he wanted to appeal the decision, he should inform Anne Boyle, the HR manager, in writing by 15 August.[19]The claimant was very unhappy about the outcome and nursed a grievance against his managers. He took no steps to appeal. The claimant did not lodge any grievance in relation to the process that had been undertaken.[20]The claimant approached Andrew Dickson, the Finance Director and handed him the final written warning letter dated 8 August 2018 that had been issued to him. Mr Dickson was busy and wasn’t sure why the letter was being handed to him. Nevertheless, he took it and later passed the letter to Ms Boyle who returned it to the claimant. The claimant took no further action or follow up the matter with Mr Dickson. At some point in September he approached one of the managers involved in the grievance process during a match and argued with him about the grievance outcome calling him a ‘liar’. Incident in Control Room[21]On 31 October 2018 the claimant was working in the control room at Ibrox Stadium. He was working with another security guard colleague, Jay Jamieson. Mr Jamieson was younger and less experienced than the claimant. The claimant regarded himself as a senior security guard although there was no difference in pay or responsibility between the two men.[22]Mr Jamieson had been unhappy for some time that when he and the claimant where on shift together the claimant made it clear that he did not like working at the stadium reception at Argyle House. He expected his security guard partner to carry out this aspect of their duties allowing him to remain in the control room.[23]On the morning of the 31 October, a female colleague, Tracey, asked the claimant and Mr Jamieson for assistance in changing break times to allow her to leave work early to pick up her daughter who was disabled. The claimant would not assist and insisted on staying in the control room. To justify this he spoke to Mr Howe and asked him if he needed the control room manned which he said he did. The claimant explained that in that event he could not cover Tracey. Mr Howe reorganised matters and Tracey arranged for her husband to pick up her daughter.[24]Mr Jamieson sat down at the desk in the control room. The claimant was standing nearby somewhat to his left and rear drinking a cup of tea. He told the claimant that his actions were “pathetic” referring to his refusal to help the colleague earlier. Mr Jamieson reported to the employers later that the claimant flicked the back of his head in response. Mr Jamieson became very angry and attacked the claimant. They began wrestling with each other and throwing punches at each other for a short period until the fight was broken up by other security guards.[25]As a consequence of this incident, the claimant was suspended. Ms Boyle wrote to the claimant on 1 November in relation to that suspension in the following terms: ‘Dear Mark Suspension pending disciplinary investigation Following your meeting yesterday with Robin Howe, I am writing to confirm that as of 31 October 2018, you have been suspended from work until further notice pending investigation into an allegation of gross misconduct, namely fighting with a colleague. You reserve the right to change or add to these allegations as appropriate in light of our investigation. Your suspension does not constitute disciplinary action and does not imply in the assumption that you are guilty of any misconduct. We will keep the matter under review and will aim to make the period of suspension no longer than is necessary. During your suspension, we will continue to pay you salary and you will continue to receive your normal contractual benefits in the usual way. You will continue to be employed by us throughout your suspension and you remain bound by your terms and conditions of employment. In particular, you are reminded that you must not disclose any confidential information or undertake any other paid employment.’[26]A copy of the disciplinary policy was enclosed.[27]The respondents instructed Ms Douglas to carry out an investigation.[28]The claimant had been very annoyed at receiving the final written warning which he felt was unjustified. One day at work at the end of January he had tackled Mr Martin his line manager about it and repeatedly called him a liar referring to his involvement in the disciplinary. He made reference to this incident in an email of 2 November at (IJ p43) which he sent to Ms Boyle. ‘Good afternoon Anne David lied to me on 28 December 2016… a lie I called him and Roman out for at the end of January 2017. Those lies, and the hostility greeted by them, meant I have had to endure some absurd circumstances in work. Accusations like we have spoken about before and being harassed by David himself and despite this, I continue to do my best, because I love my job and I love Rangers! I am just a fan that got lucky. What has happened now Anne, this is more absurd than absurd! I am really being accused of knowingly attacking somebody who, as I am led to believe due to his absence from work two weeks ago, has serious medical issues with a swollen brain! That is the question I asked Robin on Wednesday before I left Ibrox, Anne. He said I was suspended and that you would write to me about this incident yesterday. Yours patiently, Mark Wylie P.S: Jay attacked me. As the stain on the floor shows, I was drinking tea and he sideswiped me! All I did was push him away until he calmed down and left the room. PPS: That is the truth.’[29]Ms Douglas interviewed various witnesses and prepared statements. The claimant was interviewed on 7 November and minutes were taken of the disciplinary investigation interview (IJ p44-47).[30]The claimant’s position was that he was drinking a cup of tea when he was attacked without warning Mr Jamieson. It was put to the claimant that he had provoked Mr Jamieson by refusing to work at the reception at Argyll House which the claimant denied. The claimant made reference to the final written warning and what he regarded as being a hostile environment created by his line manager which he believed contributed to the assault.[31]Mr Jamieson was interviewed (IJ p48 – 51). When asked what had caused the fight, he responded: ‘‘Robin had asked me to do the first team players bus at the Copland carpark which needed to be done between 11.30am and 12.30pm. Because I was tasked with doing that, Mark should have covered Tracey’s break at 12 noon. Tracey was on reception and leaves at 12 noon to collect her daughter, who is disabled. I told Mark in the morning that I was going to do the bus and Tracey would need her break at 12 so he would need to cover this. Mark said he doesn’t work that side of the stadium so wouldn’t do it. That has always been Mark’s position as long as I’ve known him – he won’t do that side of the stadium. One person does front door reception and one does Argyll House reception. When I started on a permanent basis in July, I was always on Argyll House as Mark insisted on doing the front reception and control room……… So, Mark refused to cover Tracey’s break at 12. I went to do the player’s bus at around 11.45 am and it took an hour so I was back at the control room at 12.45pm. Mark was standing in the control room. I sat down at the desk to watch the screens. Mark said to me ‘you need to go and do Tracey’s break’. I said ‘its after 12, has it not been done?’. Mark said ‘I told you, I don’t do it so its been put back to 1pm’. Apparently Mark had spoken to Robin who had agreed to move Tracey’s break to 1pm. I turned round in my chair and said something along the lines of ‘well, I think that’s sick to refuse a woman a break to pick up her disabled daughter – you’re pitiful’. I turned round again to face the screen and Mark flicked his hand and hit the back of my head. I reacted to that – I stood up and moved quickly towards Mark and we clashed as I moved towards him – I grabbed him and he grabbed me and it was like we were wrestling – a man thing – a show of strength. Neither of us threw any punches. We were holding onto each other and wrestling, moving around and banged into desks and chairs. I think we were like this for a maximum of 20 seconds when Alistair came in and split us up.’’[32]Following the incident, Mr Jamieson apologised for his actions and left the stadium. He told Mr Martin that he had ‘lost it’ over the claimant’s refusal to work at Argyll House.[33]Ms Douglas interviewed Stephen Barr who had been in a room adjacent to the control room who had seen the altercation through an internal window (IJ p52 – 53). Following the disciplinary hearing, Mr Dickson met Mr Barr and asked him additional questions (IJ p54). Ms Douglas interviewed Mr Alistair Bain, an employee who was also in the PA room and who witnessed through the window the altercation (IJ p55).[34]Mr Bayne was also re-interviewed by Mr Dickson (IJ p56). Ms Douglas interviewed Mr Howe, the safety operator, and further questions were put to Mr Howe on 12 November (IJ p59-60). His evidence was that he believed that the claimant had manipulated the conversation with him to avoid covering Tracey’s break.[35]A short statement was taken from Kimberley Turrie on 13 November (JBp61). It was noted that she said: ‘‘My observation is that Mark hasn’t covered at Argyle House it’s always who he is partnered with. There may have been occasions when he has had to over the duration of the last twelve months, but these occasions would be very few. Before Jay Jamieson was employed, it would tend to be whoever we brought in, to cover day shifts with Mark, who would be the one to cover at reception in the morning until Tracey arrived and again at lunchtime (if required) and at 5.00pm. He would say this was the case when he was paired with Fiona Glover as well. It was part of the guard’s duties that whoever is on dayshift covers at Argyll House reception until the receptionist arrives and at lunchtime and at 5pm. We don’t keep written records of who does the cover. She added: ‘I have heard that Mark doesn’t like covering Argyll House but that has been from other staff members. Mark has never intimated that to me.’[36]Statements were taken from Mr David Martin at (IJ p62).[37]Ms Douglas prepared an investigation report (IJ p63-66) which set out the scope of the respondent’s investigation and who had been interviewed. It recorded that Mr Jamieson had admitted starting the fight and recommended that Mr Jamieson and Mr Wylie were both guilty of disciplinary offences namely fighting. Her recommendation to pursue disciplinary offences against both was accepted.[38]Ms Boyle wrote to Mr Wylie on 17 November inviting him to a disciplinary hearing on 22 November. She wrote that the allegation was: ‘‘..that on the 31 October 2018 in the stadium control room that you fought with Jay Jamieson and in doing so, physically assaulted Jay Jamieson. During the hearing, we will also be exploring the honesty of the answers provided by you during the investigation process. We have carried out the investigation and enclose a witness statements detailed below. We do intend to call any witnesses to the hearing. If you wish to call any relevant witnesses to the hearing, let us have their names as soon as possible and no later than Wednesday, 21 November 2018. If there are any further documents you wish to be considered at the hearing, please provide copies as soon as possible. If you do not have those documents please provide details so that they can be obtained. The hearing will be held in accordance with the Disciplinary Policy and Procedure, copy of which is attached. If you are found guilty of gross misconduct, you may be dismissed by notice of pay in lieu of notice. If you are found guilty of misconduct, as you are subject to a live final written warning, you may be dismissed with notice pay in lieu of notice.’[39]The claimant was advised that the hearing would be conducted by Andrew Dickson and that the claimant could take a colleague as a representative.[40]The disciplinary hearing took place on 22 November 2018. It was minuted at (IJ p69-79). The minutes were accepted by the claimant as accurate.[41]Mr Dickson carried out further investigations into the matter by speaking to witnesses before coming to a decision. He wrote to the claimant on 30 November in the following terms (JBp81) ‘I am writing to confirm that following the disciplinary hearing held on Thursday 22 November and in view of the seriousness of the matter, it has been decided that your employment with Garrion Security Services should be terminated for gross misconduct by notice and without any warnings. The reason for your dismissal is that on 31 October 2018 in the stadium control room, you fought with Jay Jamieson and in doing so, physically assaulted Jay Jamieson. On my review of the evidence relating to this matter, and in particular the evidence given by Stephen Barr, I consider that you were engaging in the fight with Jay Jamieson and throwing punches at Jay Jamieson. I do not accept your explanation that you were not aggressive and only defending yourself.’[42]The claimant was given a right of appeal.[43]The claimant exercised his right of appeal. The claimant wrote: ‘Dear Anne, Working at Ibrox full time for the last 16 hours has been an absolute honour. So, I am sure it will no surprise to read that I have no choice but to appeal my dismissal. I didn’t hit Jay. It is as simple as that. Jay attacked me. As pictures in my earlier email clearly show. As Jay himself admitted! I only defended myself (as I am legally entitled to) by trying to push him off after he had jumped off out of his seat, took a few steps and starting wrestling with me. Knocking my tea straight up in the air. What else could I have done? I almost certainly understand why Andrew doesn’t believe that I didn’t hit Jay. I mean, why wouldn’t I after he attacked me? The answer is simple. As I have previously stated, Jay was off two weeks previous which I was led to believe was a swollen brain issue. That’s why I didn’t hit him. That is why I spoke to Robin about when he came to the control room that afternoon. That and how I felt he was kind of responsible, as I told Katie Douglas (and after reading what Robin said in his first statement and Kimberly’s bizarre input, trying to justify me being attacked, with Argyll House reception being used as some sort of premeditated cover story! Who knows?). All I know is that I simply followed Robin’s instructions, and for that, as she told Katie I was attacked, both verbally and physically. And now I am being dismissed for it. Sacked for being attacked! Not only did Robin say ‘of course’ he wanted someone in the control room ‘he’ reiterated it. I had no say in moving anyone’s break time. I have no problem with covering Argyll House myself, none whatsoever. So once again, I ask, why didn’t Jay phone Robin if he had a problem with me? Why didn’t Robin tell Jay that I was only following his instruction? And that if Jay had wanted to attack somebody for not covering Argyll House at 12 o’clock (like Jay claims), it should have been Robin, not me! I can’t explain Stephen Barr’s interpretation of what he thought he saw. Just like I can’t explain the similarity in Robin, Kimberly and Jay’s statements. Jay knows I didn’t hit him. Alison never saw him even hit him. Or even attempt to. I didn’t do it! There was no punch up! And there was definitely no want on my side to do anything that would put my job in jeopardy. Especially when my job was already in jeopardy. So much so, that on 3 September, I made a frantic appeal to Andrew to look into the way I was being treated, especially regarding the final written warning I received on 6 August! Unfortunately, for me, the letter was returned, and the unfair warning stayed on my record. What else could I have do? Now, I find myself in a position where my only hope is that someone reviews the circumstances leading up to Jay’s outburst, and comes to a different conclusion. Whether that be someone at Garrion, who can reinstate me, my no.1 preference. Or an industrial tribunal. Either way, I will be appealing this all the way. What else can I do? Yours sincerely, Mark Wylie’[44]An appeal hearing took place on 10 January 2019 at which the claimant attended. The meeting was minuted (JBp92-103). Parties accepted the minutes as accurate. The appeal was dealt with by Mr Stewart Robertson, a Director of the company who wrote to the claimant on 21 January, rejected the appeal. He wrote: ‘Dear Mark Outcome of appeal hearing I refer to the appeal hearing on 10 January 2019 in response to your appeal against your dismissal, which was communicated to you by letter dated 30 November 2018. After a careful consideration of all the surrounding circumstances in your case, I have decided to uphold the decision to dismiss you for gross misconduct. Your dismissal will be effective from the original date communicated to you in the dismissal letter dated 30 November 2018. I have outlined the reasons for the decision below: 1. In considering your initial appeal point that you didn’t hit Jay, that was self-defence and that you had no intention of fighting, I have considered the evidence and my conclusions are as follows. You stated on several occasions that you were defending yourself, and you yourself described the altercation as grappling. In addition and as you are aware, there are further statements from two witnesses (Stephen Barr and Alistair Bayne) which state that you were engaged in a fight with Jay Jamieson. Stephen Barr had an unrestricted view of you and Jay Jamieson fighting in the control room and he was clear in his evidence that he saw both of you fighting with each other. Alistair Bayne was clear in his statement that you were fighting when he entered the control room and he had to physically separate you to break up the fight. Having considered this evidence, I have concluded, contradict to what you claimed during the appeal hearing, that you were indeed engaged in a fight. 2. I listened to the points you made in relation to being concerned about Jay Jamieson when he had been absent from work, that you wouldn’t have fought with a colleague for fear of losing your liberty and you felt that you did sufficiently cover reception of Argyle House (this is what appears to have been directly related to the fight). I noted that you felt these points were some way to backing your position. However, on balance, I do not agree that these points prove in any way that you did not fight with Jay Jamieson. During your discussion, you stated that you felt that either grappling with a colleague or punching a colleague whilst at work and that there is absolutely no need for this type of behaviour in the workplace. On this point, I agree with you. I considered that you said that you were attempting to disengage from the fight. However, you agreed that it took Alistair Bayne sometime to separate you and Jay Jamieson and indeed you debated whether or not he had been required to do this twice. Stephen Barr’s evidence also does not support your assertion that you were trying to disengage with the fight. To that end, and along with the other evidence, I do not find any evidence to support the claim that you were trying to disengage from the fight. I have no reason to doubt the evidence that has been gathered as part of the process and feel I am entitled to rely on it to assist me in concluding this matter. 3. Regarding your second point of appeal that you should not have been given a previous final written warning, I find these comments which appear to have been made in defense of your actions are comments made to divert attention away from the fight when referring to extremely historic matters and they do not detract from the matter in hand. The fact remains that I have concluded that you were fighting and that this constitutes gross misconduct. Additionally, given that your previous final written warning was given to you following a full process, that you were given the right of appeal that decision at the time, but chose not to do so. This current disciplinary and appeal process is in relation to an accusation of gross misconduct which if held to have occurred is in itself sufficiently to a summary dismissal. I must however remind you that you are subject to a live final written warning and it was clearly stated in that warning letter that any further incident of misconduct while the warning is live could result in your dismissal. I have been forwarded the emails you sent to Anne Boyle, HR manager, since your appeal meeting and have considered the points you have made therein in reaching my decision on your appeal. In determining the outcome of this appeal, I am conscious of the fact that it is a core element of your job as security guard to stop this type of behavior and defuse it, and indeed rely on you to do so. To engage in such violent behavior is entirely unacceptable for any employee but this is exacerbated for someone with the responsible position of a security guard. Additionally, I find that you did not consider the potential for extremely damaging consequences to the club’s main business when you engage in a fight in the control room, crashing into expensive equipment on the day of the match. Any potential damage to the equipment on that day when 50,000 fans were coming to the stadium could have had far reaching and damaging consequences for the reputation of the club. I can confirm that you have used your right of appeal and there is no further opportunity to appeal against this decision. Yours sincerely, Stewart Robertson’[45]The claimant found work after he had been dismissed and now works as a bus driver. His current earnings are in excess of his previous wage with the respondents. Witnesses[46]The claimant is an articulate, voluble, forceful and clever person who I regret to say I did not find particularly persuasive nor credible or reliable. In most statements he made there would be a grain of truth but he was unable to see matters from anything other than his own narrow perspective. I simply did not accept much of his evidence particularly around his denial that there was any longstanding difficulty in him covering the reception at Argyll House. I concluded that as one of the most senior security guards he believed that he had certain privileges and one of these was to take the pick of the work that he enjoyed most.[47]I found Ms Boyle and Mr Dickson much more straight forward and professional witnesses who showed no antipathy towards the claimant and who I was disinclined to believe had taken part in a witch-hunt against him. In short, they were credible and reliable in their evidence. Submissions[48]Mr Brown urged the Tribunal to consider the whole circumstances and conclude that the dismissal was fair. The employers had followed a fair process both in relation to the issue of the Final Written Warning and the dismissal. The employers were entitled to conclude that the confrontation evolved from self defence into a fight and that it was not in any event an unprovoked attack. The Tribunal should accept the evidence of the respondent’s tow witnesses and particularly the evidence from Mr Dickson that he did not rely on the Final Written Warning pointing to the fact that he had dismissed both of those involved.[49]There had he continued been a full investigation and Mr Dickson had spoken to witnesses himself and not just relied on the statements. The claimant’s position had been contradictory and less than candid. He had initially stated that he had just pushed Mr Jamieson away and only later that they had been wrestling. He admitted in evidence calling his line manager a ‘liar’ and that he had lost any trust in them. His evidence was not credible. If the Tribunal found the dismissal unfair then the claimant was responsible for his own dismissal through his actions and it would not be just or equitable to award him compensation.[50]The claimant reiterated his evidence that he had faced a ‘kangaroo court’ and that no employer could dismiss him when he had not started the fight. He had not touched Mr Jamieson’s head. The photographs he had produced showed when the tea had been spilled. He would not have ‘flicked’ someone’s head with a cup of tea in his hand. He had been attacked and had to defend himself. It was ‘fight or flight’. He had shown that he had in fact manned reception and it could not be argued that he did not do these duties. The claimant pointed to inconsistencies in the statements. Mr Jamieson denied that punches had been thrown. One witness said punches had been thrown but had not seen them land. He queried how long the incident actually lasted.[51]His employers suggested were responsible by creating a hostile environment at work and picking on him over the issue with Janis. He emails exonerated him in his view as she did not allege bullying, nor did she say she would not work with him again. She would hardly say this if she had been bullied. The Final Written Warning was unjustified. It was issued because the person at the centre of the matter was having an affair and he had fallen out with her, so she had used her influence to have him disciplined. He had been very depressed about this whole matter but had found better paid work quickly after leaving. He was fighting the case to clear his name. Discussion and Decision[52]The key statutory provisions that a Tribunal must apply are well-known: “98 General(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 subsection (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 subsection if it- (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) relates to the conduct of the employee, (c)………. (4) In any other case where the employer has fulfilled the requirements of subsection (1), 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.”[53]The role of the Tribunal was summarised by Mummery LJ in London Ambulance Service NHS Trust v Small [2009] IRLR 563 at paragraph 3 where he said this: “The essential terms of inquiry for the ET were whether, in all the circumstances, the Trust carried out a reasonable investigation and, at the time of dismissal, genuinely believed on reasonable grounds that [the employee] was guilty of misconduct. If satisfied of the Trust's fair conduct of the dismissal in those respects, the ET then had to decide whether the dismissal of [the employee] was a reasonable response to the misconduct.”[54]In the case of British Leyland UK Ltd v Smith [1981] IRLR 91 it was put thus: “The first question that arises is whether the Industrial Tribunal applied the wrong test. We have had considerable argument about it. They said: “[…] a reasonable employer would, in our opinion, have considered that a lesser penalty was appropriate.” I do not think that is the right test. The correct test is: Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view; another quite reasonably take a different view. One would quite reasonably dismiss the man. The other would quite reasonably keep him on. Both views may be quite reasonable. If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair, even though some other employers may not have dismissed him.”[55]In relation to dismissals involving gross misconduct the Tribunal bore in mind the comments made by Lord Jauncey in the case of the Neary v. Dean of Westminster (1999) IRLR 288 at paragraph 22:- “Conduct amounting to gross misconduct justifying dismissal must so undermine justifying dismissal must so undermine the trust and confidence which is inherent in the particular contract of employment that the master should no longer be retained to retain the servant in his employment.”[56]The issue of what the Tribunal should do when faced with a challenge to a Final Written Warning was canvassed in the case of Davies v Sandwell Metropolitan Borough Council [2013] IRLR 374 CA where it was held that a final written warning will only be manifestly inappropriate if a subsequent decision maker considering dismissal will be able to see that it is inappropriate to rely on it, otherwise it will be objectively reasonable for the employer to rely on it. Mummery LJ summarised the position as follows: "19. The correct starting point for this appeal is Part X of the Employment Rights Act 1996. It enacts the law of unfair dismissal. Section 98, which the ET cited in their first judgment (p.9), provides that: '(4) … the determination of any 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.' 20. As for the authorities cited on final warnings, Elias LJ observed, when granting permission to appeal, that the essential principle laid down in them is that it is legitimate for an employer to rely on a final warning, provided that it was issued in good faith, that there were at least prima facie grounds for imposing it and that it must not have been manifestly inappropriate to issue it. 21. I agree with that statement and add some comments. 22. First, the guiding principle in determining whether a dismissal is fair or unfair in cases where there has been a prior final warning does not originate in the cases, which are but instances of the application of s.98(4) to particular sets of facts. The broad test laid down in s.98(4) is whether, in the particular case, it was reasonable for the employer to treat the conduct reason, taken together with the circumstance of the final written warning, as sufficient to dismiss the claimant. 23. Secondly, in answering that question, it is not the function of the ET to reopen the final warning and rule on an issue raised by the claimant as to whether the final warning should, or should not, have been issued and whether it was a legally valid warning or a 'nullity'. The function of the ET is to apply the objective statutory test of reasonableness to determine whether the final warning was a circumstance, which a reasonable employer could reasonably take into account in the decision to dismiss the claimant for subsequent misconduct. 24. Thirdly, it is relevant for the ET to consider whether the final warning was issued in good faith, whether there were prima facie grounds for following the final warning procedure and whether it was manifestly inappropriate to issue the warning. They are material factors in assessing the reasonableness of the decision to dismiss by reference to, inter alia, the circumstance of the final warning."[57]In this case the evidence in relation to the Final Written Warning was not as complete as it could have been but it was clear from the evidence of Ms Boyle who was involved in it that the usual disciplinary process was followed. It was found that the claimant was effectively bullying Ms Hopkins ignoring her, failing to assist her and in effect bullying her. While it might seem on the face of it harsh to proceed to a Final Written Warning where the claimant had an otherwise clean record and the effect of any bullying did not seem to have prevented her expressing the view in her email of the 28 May that she had no issue with working with him the danger is that the Tribunal would be substituting it’s own views for those of the discipling officer on a matter where he had the advantage of seeing and considering all the evidence. As a collateral issue the claimant raised the fact that he had not seen the statement of a Mr Vernon which had been taken. It turns out that Mr Vernon could add nothing to the allegations either for or against the claimant and it was not included for this purpose. While there is always a danger in an employer doing this it is more transparent to release any statements taken even if they are not ultimately founded upon or as in this case the person being disciplined will hear that a statement has been taken and assume that there is some untoward reason for it not being disclosed.[58]In these circumstances, I could not hold that the Final Written Warning had some obvious defect or could not be relied on by the employer. The appropriate process had been utilised and the claimant did not appeal it. In any event I accepted the evidence of Mr Dickson that he did not take it into account when considering dismissal. It was not presented to him with the evidence for the disciplinary hearing contained in Ms Douglas’s report (IJ p63- 66). He had only been made aware of the issue of the matter the claimant briefly brought it to his attention some weeks before but he passed the letter to Ms Boyle and dismissed the matter from his mind. In evidence he was clear that he focused only on the evidence before him in relation to the incident in the control room.[59]The remaining issues for the Tribunal are whether the respondents were entitled to consider that they had sufficient reliable evidence to reasonably come to the views they did and whether in the circumstances the penalty of dismissal was outwith the band of reasonable responses.[60]We now need to examine the evidence in relation to the incident that occurred on the 31 October. It is noteworthy that those who witnessed the incident spoke generally about the same grappling or wrestling match. The inconsistencies relied upon by the claimant relate to the time the incident took from being observed to it being stopped. It is common for Tribunals to observe that people’s perception of the passing of time varies and seldom accords with mechanical recording of time. The witnesses’ ability to accurately time something is not the issue it is whether they observed accurately the incident in which the claimant was involved.[61]The second issue was that the claimant argued that evidence was contradictory in relation to whether punches were thrown by both parties. This was crucial to the employer’s position that irrespective of the fact that Mr Jamieson started the fight the claimant then engaged in fighting and went beyond any self defence. In passing it should be noted that the claimant’s initial position recorded in his email dated 2 November (IJ p43) was ‘all I did was push him away until he calmed down’ Mr Barr who watched the incident through an internal window believed that there was a ‘stand up fight’ (IJ p52) and stated the ‘they were definitely punching each other’ (IJp53). Mr Bayne had witnessed the start of the incident but had moved to stop it which meant for a short period he was not looking at the scene. There is no reason why Mr Dickson should not have preferred the evidence of Mr Barr who had an unrestricted view of the entire matter.[62]Mr Dickson also accepted that Mr Jamieson had been provoked both by the refusal to help Tracey earlier in the day, the claimant more generally avoiding working at the reception at Argyle House and finally flicking his head.[63]The role of a security guard at a large stadium like Ibrox is an important and responsible one where the employer has to have considerable trust in the person carrying out these functions. Fighting is a disciplinary offence that can constitute gross misconduct in terms of the disciplinary rules. The claimant contributed greatly to the situation that had arisen with Mr Jamieson which had nothing to do with the ‘hostile’ environment’ he later alleged that the employers had created. The assault was not in any way unprovoked. That is not to excuse the actions of Mr Jamieson, however goaded whose actions were patently wrong and accepted as such by him when he left the stadium and apologised for them.[64]In looking at the wider circumstances the claimant was culpable for the situation that arose and the finding that he engaged in fight was a finding the employer was entitled to make and that means that the claimant committed an act of gross misconduct in terms of the disciplinary policy. Accordingly even treating the claimant as having a clean disciplinary record, as Mr Dickson did, the sanction of dismissal is also both wholly understandable and in my view within the band of reasonable responses open to the employer. The application for a finding that the dismissal was unfair cannot succeed and the claim is dismissed.[65]For completeness even if I had found that the dismissal was in some way unfair the claimant was truly the author of his own misfortune here and I would have assessed his contribution to the dismissal as being a very substantial one that would probably extinguish entirely any award.