THE INDUSTRIAL TRIBUNALS

CASE REFS:  478/07
827/07

CLAIMANTS:		Francis Sampson
				Gary Walker

RESPONDENT:		ICTS (UK) Ltd

DECISION
The unanimous decision of the tribunal is that both claimants were unfairly dismissed.  Compensation of £15,154.60 is awarded to the first-named claimant and compensation of £3,160.26 is awarded to the second-named claimant.

Constitution of Tribunal:
Chairman:		Mr N Kelly
Members:		Mrs McAuley
			Mr Hall

Appearances:
The first-named claimant was represented by Mr M Heaney, Barrister-at-Law, instructed by Donnelly & Kinder, Solicitors.
The second-named claimant was represented by Miller McCall Wylie, Solicitors.
The respondent was represented by Mr P Moore, of Peninsula Business Services Limited.

The Issue

1.	The issue before the tribunal was:-

“Whether the summary dismissal of either or both claimants was an unfair dismissal contrary to Part XI of the Employment Rights (Northern Ireland) Order 1996.”

2.	The respondent’s case was that the claimants, as security agents (security guards) employed at Aldergrove Airport, allowed an Air Traffic Controller to come from a restricted zone (airside) to an unrestricted zone (landside) and back again without being screened and that the claimants similarly had allowed a painter to pass from landside to airside and back again without being screened.  

3.	The claimants’ case was that they had not broken any security procedure in that the painter had not at any stage gone airside and that the Air Traffic Controller when he had crossed from airside to landside had been under constant observation before returning to airside.  The claimants also alleged that the dismissals had been procedurally unfair.

Facts not in contention

4.	The respondent is an aviation security company which provides security services to Belfast International Airport at Aldergrove.  

5.	Both claimants were employed by the respondent as security agents at the Airport.  They were based at Checkpoint 1 which is a portacabin type building which is entirely separate from the main terminal building and which deals with staff, contractors and delivery drivers, including tanker drivers who are entering and leaving the airside restricted zone.  

6.	Disregarding kitchen facilities which are irrelevant to the present case, the checkpoint building is rectangular in shape.  At the front of the building there is a door referred to as the ‘entry point’.  Immediately inside that door and to the right there is a group of desks where security agents sit and a control panel which operates the vehicle barriers immediately to the right of the building.  There are two such barriers at that location and a vehicle which wishes to enter airside has to go through the first barrier which is then closed behind the vehicle.  At that point the driver enters the checkpoint building through a door which is referred to as the ‘lock door in’ to be screened.  Screening consists of a documentation check, passing through an archway metal detector (AMB), being searched if necessary and an x-ray baggage check if necessary.  Once screened the vehicle driver exits through another door on the right-hand side of the building known as the ‘lock door out’, re-enters his vehicle and the second barrier is then lifted allowing the vehicle to proceed airside.  At the rear of the checkpoint building there is a door leading to airside which is known as the ‘restricted zone exit’.  That door is controlled by an electronic lock operated by a security agent at the control panel at the other end of the building.  A pedestrian wishing to enter the checkpoint from the airside has to press a buzzer and wait for that door to be opened electronically by a security agent.  A pedestrian wishing to leave the checkpoint building to go airside, once having been screened, would similarly have to be buzzed through by a security agent.  Inside the checkpoint building and close to the restricted zone exit, there is an archway metal detector on the left and almost adjacent to it an x-ray machine through which any baggage is checked.  

7.	The first-named claimant had worked at the airport from 31 March 1980 and had almost 27 years service.  Apart from one expired ‘first warning letter’ in 1996 and an ‘expression of concern’ on 3 October 2006, she had a clear disciplinary record.  She was regarded as an experienced and conscientious employee.  She was summarily dismissed on 25 January 2007, one month short of her 62nd birthday.  

8.	The second-named claimant had worked at the airport from 24 May 2004 and had therefore accumulated approximately two years and seven months service.  He had a clear disciplinary record and was regarded as a competent employee.  He was also summarily dismissed on 25 January 2007.  

Findings of fact

9.	Aviation security is governed by Annex 17 to the Chicago Convention to which the United Kingdom is a signatory.  That Convention requires Member States to have a National Aviation Security Programme (‘NASP’).  The Aviation Security Act 1982 and the Aviation and Maritime Security Act 1990 comprise the relevant United Kingdom legislation.  

10.	Power to regulate aviation security is given to the Department for Transport (‘DFT’).  The NASP requires each airport, including Aldergrove, to have its own Aviation Security Programme (‘ASP’).  

11.	Individual security companies, such as the respondent, are authorised by DFT and have training programmes for their staff in accordance with DFT guidelines.  Each checkpoint, including Checkpoint 1, has an individual protocol which is an extract from the ASP and which sets out the procedures for security agents at that individual checkpoint.  A copy of the protocol is kept at each checkpoint and agents are advised to consult it as a first ‘port of call’ when in doubt as to the correct procedure in any circumstances.

12.	None of the relevant legislation exempts aviation security employers from the requirements of employment legislation.  

13.	Checkpoint 1 was subject to constant CCTV coverage and the respondent regarded the CCTV recording of the incident which gave rise to the summary dismissals as important evidence and, in fact, it appears to have been the only evidence on which the respondent initially acted.

14.	For quite understandable reasons, the tribunal was not provided with a copy of the NASP or the ASP.  Both documents are restricted and in any event would have been irrelevant to the issues under consideration in this case.  However, the tribunal was not given the protocol or even extracts from the protocol for Checkpoint 1.  The respondent’s case was that the summary dismissals were fair because the claimants had breached DFT procedures at Checkpoint 1.  The claimants denied that they had breached such procedures.  The procedures at this checkpoint were the subject of detailed oral evidence from both parties over a period of three days in a public hearing.  In these circumstances, any suggestion that releasing the relevant part of the protocol to the tribunal, if necessary in conjunction with a hearing in camera, would have resulted in a security breach is, in the opinion of this tribunal, mistaken.  

15.	The CCTV coverage was not available for the tribunal hearing.  The tribunal was informed by Mr Moore, for the respondent, that it had been automatically erased after a period of one month.  Apparently no attempt had been made to retain a copy.  

16.	The training records of Mr Walker had been destroyed, apart from a single sheet which purported to record all training undertaken by the second-named claimant.  The tribunal was informed that the training records of Mrs Sampson had apparently not been destroyed, but they were not disclosed to the tribunal.  

17.	The respondent was not able to allow the tribunal to see a digital photograph of the interior of the checkpoint building to assist it in its deliberations.  After much debate, a rough diagram (which as the evidence progressed did not appear to be particularly accurate) was provided to the tribunal on the unusual basis that only the Chairman could retain a copy which would then have to be destroyed on completing the decision.  A photograph would have disclosed nothing more than the interior of a checkpoint through which large numbers of airport employees, contractors and delivery drivers pass on a daily basis.  

18.	On 12 January 2007, the Airport Authority reported to the respondent that there had been a security breach at Checkpoint 1 in that the claimants had allowed an Air Traffic Controller to pass from airside to landside and back to airside without the Air Traffic Controller being screened.  It was also alleged that they had allowed a painter to enter the airside restricted zone without having been screened.  The claimants were suspended from duty and sent home.  

19.	Separate investigation meetings were held with each claimant on 17 January 2007.  These were conducted by Mr Geoffrey McCooke, the respondent’s Operations Manager.  

20.	In the investigation meeting in relation to Mr Walker, Mr McCooke outlined the subject-matter of the investigation. Mr Walker responded in clear terms that he had not been properly trained.  He also stated that he had been told by a Mr Trevor Kane (his supervisor at the relevant time) that the back door of the checkpoint, ie the door known as the ‘RZ exit’, was the dividing line beside airside and landside.  In other words, unless a person went through that door or intended to go through that door, that person did not need to be screened.  This would have had particular significance in relation to the painter: if it were correct, no breach of procedures had occurred in that respect.  Mr McCooke allowed the claimant to view the CCTV recording.  This was a series of digital stills at two second intervals.  He was allowed to view it once and was not allowed to take a copy.  Mr Walker denied that the CCTV coverage showed any breach of security.  He also complained that sitting in paint fumes caused by the painting operation within the checkpoint building, had given him a sore head and had affected his vision.  

21.	In the investigation meeting relating to Mrs Sampson, when asked what the requirement was for letting someone go into the restricted zone, she said:-

“He wasn’t going anywhere.  The painter was only going to the back door.”

The CCTV coverage was also shown to Mrs Sampson.  Both claimants stated in evidence that the CCTV was shown on Mr McCooke’s computer monitor on his desk and that the screen was turned more towards him than towards each claimant.  Each claimant stated that it was difficult to see what was going on in the CCTV recording.  In any event, it would appear that the footage was only shown once and that the first-named claimant was not given a copy.  Mrs Sampson told Mr McCooke that the Airport Police were the only ones who had trained her for that checkpoint and that they had told her that if someone remained in the security agent’s view (having come airside) there was no need to re-screen that individual before that individual returned airside.  Mr McCooke did not appear to challenge that proposition during the investigation meeting.

When it was suggested to her by Mr McCooke that the painter was passing from airside to landside (within the checkpoint) she replied:-

“He was only going to the back door.”

22.	Disciplinary charges were issued to both claimants on 19 January 2007 and separate disciplinary interviews were conducted on 23 January 2007 by Mr Harmond Nesbitt the respondent’s liaison manager.  Mr Nesbitt stated in evidence and under cross-examination maintained that he had shown the CCTV footage to both claimants in the course of these disciplinary interviews.  Each claimant denied that he had done so and stated that the only occasion on which an opportunity had been given to them to view the CCTV footage was the one viewing during the investigation interviews on 17 January 2007.  A detailed written record of the disciplinary interviews does not mention the showing of any CCTV footage.  It does not record the discussions of the footage which Mr Nesbitt stated in evidence had taken place.  It does not mention the CCTV footage being shown at all.  The note-taker who compiled the record was the same individual who had compiled the record of Mr McCooke’s investigation meetings a few days previously.  The record of those investigation meetings had a specific entry in block capitals which stated:-

“WATCH VIDEO FOOTAGE”;

at the appropriate point in the record.  It recorded in detail the discussion between Mr McCooke and the claimants as the CCTV footage was being watched.  The tribunal can see no reason why the note-taker would have excluded such an important part of the content of each disciplinary interview or why she would have altered her approach to recording interviews in the brief period between the investigation interviews and the disciplinary interviews.  The tribunal further sees no reason why Mr Nesbitt would have accepted an incomplete note of the disciplinary interviews.  The record of Mrs Sampson’s interview was signed by Mr Nesbitt and accepted as an ‘accurate representation of the content of discussion during the disciplinary meeting’.  The note-taker was not called by the respondent to give evidence to the tribunal to help it to resolve this conflict in evidence.

The tribunal therefore concludes that Mr Nesbitt did not, as he alleged, show the CCTV footage to the claimants during the disciplinary interviews.  

23.	During his disciplinary interview, Mr Walker again raised the issue of paint fumes.  He stated they had ‘got to his head and his left eye was watering’.  He further stated that he had reported this problem to Mr David Rowan, his supervisor at the time.  Mr Rowan had furnished a note to the respondent dated 15 January 2007 which stated that no official complaints had been received and that no complaints that fumes had affected anyone’s health had been received.  However, Mr Rowan did state in this note that he had received general complaints like ‘it’s cold because the doors need to stay open because of the paint fumes’, on a daily basis from checkpoints.  The tribunal concludes therefore that fumes were causing some difficulty.  If it were otherwise, it is difficult to understand why anyone would have felt the need to leave checkpoint doors open in February.  

Mr Walker is recorded as stating that he denied during the disciplinary interview that he had done wrong.  He stated:-

	“Have never done anything wrong.”

However, a mere six lines later in the notes of the disciplinary interview, he is recorded as saying that:-

		“I realise I have done wrong.”

Mr Walker denied admitting guilt in his letter of appeal and further denied making that specific statement when he was shown a copy of the notes of the disciplinary interview for the first time during his appeal hearing.  Mr Nesbitt maintained in evidence and under cross-examination that Mr Walker had accepted during the disciplinary interview that he had “done wrong”.  The tribunal notes the remarkable inconsistency between the two recorded statements during the disciplinary interview, the content of the investigation meeting and Mr Nesbitt’s inaccurate recollection of the content of the disciplinary interview referred to above.  Having observed the second-named claimant giving evidence, the tribunal concludes that it is highly unlikely that he said that he had realised that he done wrong during the disciplinary interview.  

24.	In Mrs Sampson’s disciplinary interview, she stated that she accepted that the painter should have gone through the archway metal detector.  This is inconsistent with her position during the investigation meeting and with her position subsequently and at the tribunal.  Mrs Sampson sought to explain this inconsistency at the tribunal by stating that the painter had started at 7.20 am and had been screened at that time.  However it appears to the tribunal that there were two substantive issues which a reasonable employer should have clarified during this disciplinary interview; namely, firstly, whether the boundary between landside and airside was the rear exit door of the checkpoint (the RZ exit) as contended by the claimants or whether it was within the checkpoint building at the archway metal detector as contended by the respondent, and secondly, whether the Air Traffic Controller had been kept under close observation by either or both claimants during the period when he was landside having entered from airside and before he returned airside.  

The landside/airside boundary was an issue which had been raised primarily by Mr Walker but also by Mrs Sampson at the investigation meetings.  Mr Nesbitt was aware of the existence of this dispute and must have been aware that this was a key issue which should have been put plainly to Mrs Sampson and which should have been examined.  Instead the disciplinary interview appears to have been a series of sometimes relatively lengthy statements by Mr Nesbitt covering a range of factors and punctuated intermittently by short interjections from Mrs Sampson.  It was never put to the claimant that the dividing line between landside and airside was well-known, or that it had been delineated in any physical manner, or that it had been made clear in the checkpoint protocol or at any point in her training.  At one point, after a particularly lengthy statement from Mr Nesbitt in which at least four separate points were made, the claimant stated:-

	“We usually do a good job – just a bad day.”

Mrs Sampson stated before the tribunal that she was at this point referring to the paint fumes, inconvenience and additional work caused by the presence of painters.  The tribunal accept this explanation and do not regard this statement by the first-named claimant at a disciplinary interview as something which any reasonable employer in this context would have regarded as an admission of guilt.  

25.	The tribunal is concerned at the manner in which the disciplinary interviews were conducted.  There was no suggestion or evidence of bullying or of an oppressive attitude on the part of Mr Nesbitt.  However, Mr Walker referred in evidence to Mr Nesbitt ‘talking over the top of him’ and having examined the notes of the disciplinary interviews, the tribunal can understand the point the second-named claimant was making.  

The purpose of a disciplinary interview is to enable an employee to understand and to respond to the disciplinary charges which he or she is facing.  (See Para 16 of the LRA Code of Practice for Disciplinary and Grievance Procedures).  Ideally, each aspect of a disciplinary charge should be put to an employee and their response elicited.  If several statements are made by the interviewer in succession without inviting a response separately to each point, it is likely to be extremely confusing to the employee.  An employee facing the possibility of dismissal is entitled to a fair opportunity to put his or her case.  The notes of the disciplinary interviews do not read as if Mr Nesbitt was concerned to get any response from the claimants and, in particular, any response to the core issue in relation to the painter which was the precise location of the airside/landside boundary in Checkpoint 1.  In relation to the Air Traffic Controller, the core issue was whether the Air Traffic Controller had been kept under observation and yet an opportunity to view the CCTV footage was not given to either claimant during their disciplinary interviews, even though both claimants were clear that in their view the Air Traffic Controller had been kept under observation throughout.  

26.	The tribunal is particularly concerned by the following statement which was made by Mr Nesbitt and which is recorded in the record of Mrs Sampson’s disciplinary interview:-

“I will not make any decision now, will have a look at your and Gary’s notes and I will reflect on what has been said but it is being treated as a very serious breach of security.”

At that point, when Mr Nesbitt states that he had not made up his mind about the disciplinary charges, it is unclear who had decided that ‘it was being treated’ as a very serious breach of security.  It was for Mr Nesbitt and for no one else, in the context of the disciplinary proceedings to determine, firstly, whether or not there had been a breach of security procedures and, secondly, whether any such breach of procedures was serious.  

27.	Letters were issued to each claimant on 25 January 2007 dismissing each of them summarily on the ground of gross misconduct.  Each letter stated that:-

“Your failure to stick to the Department of Transport regulations has resulted in a very serious breach of security.”

	Both dismissals were on the basis that:-

(a)	the Air Traffic Controller had been allowed to go from airside to landside and back again without being screened; and

(b)	the painter had been allowed to go from landside to airside without being screened.

28.	Each claimant appealed against the decision to dismiss.  The dismissal letter addressed to the second-named claimant had stated that he ‘had accepted that you had done wrong’.  This was immediately denied by the second-named claimant in his letter of appeal.

29.	The first-named claimant’s appeal was heard by Mrs Winnie McCarroll, the Station Manager, on 9 February 2007 and the second-named claimant’s appeal was heard by Mrs McCarroll on 12 February 2007.  

Paragraph 6 on Page 22 of the Employee Handbook provided by the respondent states that:-

“Our aim is to have the appeal as a complete re-hearing and reappraisal of all matters in order that the person who conducts the appeal can make an independent decision into the severity and appropriateness of the disciplinary action before deciding to refuse or grant the appeal.”

30.	Mrs Sampson was not given an opportunity to view the CCTV footage during or before this appeal hearing.  This footage was clearly still available at this point in time because Mrs McCarroll’s evidence to the tribunal was that she viewed it several times after having heard the first and second-named claimants’ appeals.  This does not sit easily with the statement made by Mr Moore, on instructions and without demur from the respondent, that the recordings were automatically deleted after one month.  If that had been correct, it would have been deleted on 11 February 2007 and would not have been available for viewing after Mr Walker’s appeal.  However the precise point at which the CCTV footage was deleted is not relevant to the issue before the tribunal.

31.	During the appeal hearing, Mr Walker again maintained:-

(a)	that he had been told by his then supervisor, Mr Trevor Kane, that the boundary between airside and landside was the rear door of the checkpoint; and

(b)	that he had received no training for Checkpoint 1; and

(c)	that the paint fumes had affected him.

32.	Mrs McCarroll read out a note from an employee with Health & Safety responsibilities to the effect that the paint which had been used was water based and stated that Mr Walker would have received specific training on Checkpoint 1 from Karen Martin, one of his succession of supervisors.  No record of this training was produced to the second-named claimant or indeed was produced to this tribunal and Karen Martin was not called as a witness to this tribunal.  

33.	It is clear that Mr Walker’s appeal hearing was extremely heated and Mrs McCarroll alleged in her evidence that he had adopted a confrontational attitude.  However, she was equally clear in her evidence that she had not taken this attitude into account in assessing the fairness of the dismissal.  Therefore, Mr Walker’s attitude and behaviour during this appeal hearing is not relevant to the issue before the tribunal.

34.	The appeal hearing appears to have fallen short of what could properly be considered as a complete re-hearing or as a reappraisal of relevant matters within the terms of the respondent’s own disciplinary procedure.  Mr Walker had again made it plain that his position was that he had been told by his then supervisor that the rear door of the checkpoint was the landside/airside boundary and that he had been given no formal training which contradicted that information.  That issue was not apparently considered in any great depth by Mrs McCarroll.  Mr Walker was not referred to any specific part of his training or to any evidence that the landside/airside boundary was in the area of the archway metal detector as contended by the respondent before this tribunal. It does not appear that any statement was sought from Mr Trevor Kane rebutting Mr Walker’s claim that he had been told that the rear door of the checkpoint was the relevant boundary even though his claim had been on the record from the start of these disciplinary proceedings and even though this issue was central to the disciplinary charge in relation to the painter. If Mr Walker had indeed been told by his supervisor that the airside/landside boundary was the rear door, then there would have been no need under the security procedure to have screened the painter at all or indeed have to kept him under observation while he was within the checkpoint building and while he had no intention of going out through the rear door of the checkpoint onto the apron.  While Mrs McCarroll states that she viewed the CCTV footage herself on several occasions after the appeal hearings to consider the other crucial issue, ie whether or not the Air Traffic Controller had been kept under observation by one or both claimants throughout his presence within the checkpoint, it is difficult to see how the appeal could be regarded as fair if Mr Walker had not been given an opportunity to view and comment on the CCTV footage himself.  In the context of a full re-hearing and re-appraisal of relevant issues that would be essential.  This was particularly the case when no opportunity had been given to view the CCTV footage during the disciplinary interview conducted by Mr Nesbitt.  

35.	The same points apply to Mrs Sampson’s appeal hearing.

36.	During that appeal hearing, Mrs Sampson said only that she did not think that either she or Mr Walker had done anything which had not been done a thousand times before.  She pointed out that both the painter and the Air Traffic Controller had been security-cleared.  By this she meant that both individuals had full security passes entitling them to access to anywhere in the Airport without the necessity for an escort.  

37.	Mr Walker’s appeal was dismissed by letter on 19 February 2007 and Mrs Sampson’s appeal was dismissed by letter on 16 February 2007.  

Each letter stated:-

“We have taken into consideration what you have said but we must adhere to and not deviate from the procedures set in place by the Department of Transport to counter terrorist activity.  Your failure to adhere to Department of Transport regulations resulted in a serious breach of security.”

Relevant Law

38.	In British Home Stores Limited  v  Burchell [1978] IRLR 389, the decision stated that in determining whether a dismissal is unfair, a tribunal has to decide whether an employer who dismisses on grounds of misconduct had entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that conduct at that time.  That in itself involves three elements.  First, there must be established by the employer the fact of that belief; that the employer did believe it.  Second, there must be shown that the employer had in his mind reasonable grounds upon which to sustain that belief.  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.  

39.	The Court of Appeal in the case of Sainsburys Supermarkets Limited  v  Hitt [2003] IRLR 23 stated that a tribunal in this situation cannot substitute its own judgment as to what amounts to reasonable investigation.  It must apply an objective standard, ie, the standard of the reasonable employer as to what constitutes a reasonable investigation.  

40.	The Employment Appeal Tribunal determined in Iceland Frozen Foods Limited  v  Jones [1982] IRLR 439 that the function of an industrial tribunal is to determine in the particular circumstances of each case, whether the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted.  If the dismissal falls within the band the dismissal is fair; if the dismissal falls outside the band it is unfair.  

41.	The Court of Appeal in Andrew James Taylor  v  OCS Group Limited [2006] EWCA Civ 702 stated:-

“The use of the words ‘re-hearing’ and ‘review’ albeit only intended as an illustration, does create a risk that Employment Tribunals will fall into the trap of deciding whether the dismissal procedure was fair or unfair by reference to their view of whether an appeal was a re-hearing or a mere review.  This error is avoided if Employment Tribunals realise their task is to apply the statutory test.  In doing that they should consider the fairness of the whole disciplinary process.”

	The court went onto say:-

“In saying this, it may appear that we are suggesting that Employment Tribunal should consider procedural fairness separately from other issues arising.  We are not; indeed it is trite law that [GB equivalent legislation] requires the Employment Tribunal to approach its task broadly as an industrial jury.  That means that it should consider the procedural issues together with the reasons for the dismissal as they have found it to be.  The two impact on each other and the Employment Tribunal’s task is to decide whether, in all the circumstances of the case, the employer acted reasonably in treating the reason they have found as a sufficient reason to dismiss.”

42.	Article 130 of the 1996 Order provides that the determination of the question of whether the dismissal is fair or unfair depends on whether, in the circumstances, (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably in treating the basis for the dismissal as a sufficient reason for dismissing the employee and that question shall be determined in accordance with equity and the substantive merits of the case.

43.	Length of service is a factor which a Employment Tribunal could properly take into account in deciding whether the decision of an employer to dismiss in reaction to the employee’s conduct was an appropriate one – Strouthos  v  London Underground Limited [2004] IRLR 636

Decision

44.	It is for the respondent in an unfair dismissal case to identify the reason for dismissal.  In the case of both claimants, the tribunal is satisfied that the reason was the alleged misconduct on the part of the claimants.  

45.	The next task for the tribunal is to consider the reason for the dismissals together with any procedural issues which arise and to consider both matters together to determine whether or not the respondent acted reasonably in all the circumstances of the case in deciding to dismiss both claimants summarily – see Taylor v OCS Group Limited above.

46.	The alleged misconduct on the part of both claimants involved two separate issues even though, in terms of chronology at least, the issues overlap to an extent.

47.	The first issue is that of the painter working at the restricted zone exit door.  There was a conflict in evidence in relation to the painter.  The claimants said that two painters had in fact been working within the checkpoint at all relevant times.  They were a father and son team who had been working at the Airport for several years on a regular basis and who had full airside security passes.  The claimants stated that one of the painters worked at the entry door and the adjacent windows at one end of the checkpoint building while the other worked at the other end of the checkpoint building at the restricted zone exit door.  Mr Nesbitt and Mrs McCarroll were adamant that there was only one painter in the checkpoint.  However no witness or documentary evidence, eg worksheets, was produced by the respondent to clarify this point and the tribunal assumes that it would have been relatively easy for the respondent to obtain such evidence from the Airport.  The disciplinary charge related only to a painter working at or near the restricted zone exit door.  It does not appear that the respondent sought during the disciplinary process to clarify how many painters were actually engaged in working within the checkpoint building at the relevant time.  Since the painters were, on the unchallenged evidence of the claimants, a father and son team who worked regularly at the Airport, this seems to be an unfortunate omission.  There is at least a risk that two painters might have been confused in the series of digital still images which were only shown to the two claimants by Mr McCooke.  If the respondent was correct in fixing the landside/airside boundary as being in the area of the archway metal detector, a painter at the entry end of the checkpoint building might have raised no issues at all in terms of security.  We have no evidence of blind spots in the CCTV coverage but it would have been a remarkable camera in a rectangular building that was capable of covering the entire floor space of that building.  The possibility exists, to put it no higher, that in certain of the stills one painter was shown while the other was not.  However it is not the tribunal’s job to reconstruct or to rerun the disciplinary process; it is the tribunal’s job to decide whether it was fair on an objective standard.  The tribunal is of the view that a reasonable employer, particularly when faced with a possibility of the dismissal of an employee with 27 years service would have identified precisely the individual or individuals who might have triggered a security breach and would therefore have investigated the matter to a significantly greater extent during disciplinary process including the appeal stage.  This is one of the issues which could perhaps have been clarified if the claimants had been given an opportunity to view the CCTV footage after they had received the disciplinary charges.

48.	Turning to the question of the landside/airside boundary, the evidence from Mr McCooke suggested that the boundary was an ‘imaginary’ straight line running across the interior of the checkpoint through the archway metal detector.  Mr Nesbitt when giving his evidence corrected this and stated that the right hand side of the ‘imaginary’ line (when observed from the entry door) ended at the door on the right hand side of the building described as the ‘lock door in’.  It was therefore more of a ‘dog leg’ than a straight line.  There was no physical delineation of this boundary.  It would have been a simple matter to paint a line on the floor or to have erected clear signage to mark this boundary.  This was not done.  The only relevant sign was one fixed to the restricted zone exit door which on Mr Walker’s unchallenged evidence read:-

“You are now entering a restricted zone.”

	It is perhaps significant that it did not say:-

		“You are in a restricted zone.”

Mr Walker gave evidence that after he had originally started work in Checkpoint 1 he had been concerned at his position between the hours of 9.30 pm and 10.30 pm on the late shift.  Mrs Sampson went home at 9.30 pm and Mr Walker would have been working alone in the checkpoint until 10.30 pm when he was relieved by the night duty security agent.  He asked Mr Trevor Kane, his then supervisor, how he could be screened as he moved back and forth past the archway metal detector alone and unobserved during this one hour period each day.  Mr Kane told him that the boundary was in fact at the restricted zone exit door.  That evidence was challenged by the respondent, but Mr Kane was not called to give evidence to rebut it.  The checkpoint protocol was not produced and was not referred to in either the evidence-in-chief of the respondent’s witnesses or in the cross-examination of the claimants’ witnesses.  The tribunal therefore concludes that the protocol did not specifically deal with this matter.  The sign on the restricted zone exit door is consistent with the evidence of both the second-named claimant and the first-named claimant on this point.  

If an employer is to dismiss somebody in these circumstances, it is incumbent on such an employer to make sure that the landside/airside boundary is clear and that it is clearly understood by all involved.  It was agreed by all the parties that the boundary in the central search area in the main Airport building was at the archway metal detector.  However it was also agreed that Checkpoint 1 is different from the central search area in some respects.  It is an enclosed checkpoint building with an electronically locked rear door and with the added complications of responsibility for several sets of vehicle barriers.  Even Mr McCooke, who was responsible for training security staff and Mr Nesbitt, the Operations Manager, did not appear to be entirely clear as to the precise position of the ‘imaginary’ line.  

The tribunal notes the evidence of the claimants, that the painter who moved to the restricted zone exit door was screened at approximately 7.20 am but accepts Mr Walker’s evidence that he did this automatically because the painter had himself put his paint in the x-ray tray on the x-ray conveyor belt.

In short, the tribunal concludes that the respondent did not act fairly in treating the movements of the painter as a basis for dismissal or indeed as a basis for any disciplinary action because the respondent had failed to make the landside/airside boundary clear.  On the evidence before it, the tribunal concludes that Mr Walker had been told that this boundary was in fact at the restricted zone exit door and not, as contended by the respondent during this hearing, in the area of the archway metal detector.  

49.	Turning to the question of the Air Traffic Controller, the Air Traffic Controller clearly crossed the boundary between airside and landside.  He did not leave the checkpoint to go further into the landside area but having entered the restricted zone exit door he had crossed the relevant boundary.  The issue then was whether either or both of the claimants had failed in their duty to keep him under observation during the period before he returned to airside.  It is worth noting at this point that it seems clear that Mrs Sampson was in fact outside the checkpoint during part of the relevant period performing her duties in relation to vehicle control.  There does not appear to have been any clear attempt on the part of the respondent to identify precisely when the Air Traffic Controller was out of observation and to therefore identify whether either the second-named claimant or the first-named claimant or both had been at fault at any particular point.  

50.	It would also be useful at this point to look more closely at the duties of the security staff at Checkpoint 1.  They were responsible not only for screening pedestrians crossing the airside/landside boundary and for vehicles entering airside.  They were also responsible for three other sets of vehicle barriers to the left and the right of the checkpoint leading to a maintenance yard and car parks.  At the relevant times, there were only the two claimants on duty at this checkpoint.  The tribunal is concerned that the respondent took no steps to provide additional staff to assist with the inevitable disruption caused by the presence of a painter or painters within the checkpoint building on the day in question.  If, for the sake of argument, it were to be accepted that the respondent’s version of the landside/airside boundary were correct, it was perhaps unreasonable for the respondent to expect one of the claimants to keep the painter or painters under constant observation while the other claimant was outside the checkpoint engaged on vehicular duties.  The alternatives suggested by the respondent were that the checkpoint should be locked, ie pedestrians from the landside and airside should be locked outside the building until the other claimant returned from vehicular duties or that the claimants should have requested additional help from the Central Search Area in the main Airport building.  The first option was, on the evidence of the claimants, impracticable and the claimants also stated that help from the Central Search Area, when requested, was slow in coming and did not remain long.  However, that is not the point.  The respondent as the employer, knew that this was a busy checkpoint and knew that having a painter or painters within the checkpoint would involve additional work and additional security problems.  It was therefore up to management to discuss the potential difficulties with security staff and to put in place any necessary additional resources.  This is particularly the case when staff could be dismissed for any transgressions that might arise as a result of the additional workload.  Such discussions did not take place.  

51.	The investigation and disciplinary processes were, in the opinion of this tribunal, flawed when judged against the objective standard of a reasonable employer.  These claimants faced dismissal but were afforded only one opportunity of viewing the CCTV footage in what would appear to have been unsatisfactory conditions.  The claimants did not accept that they had not kept the Air Traffic Controller under observation.  They should have been given the opportunity to demonstrate that, and to explain their position by reference to the CCTV footage during the disciplinary process and not just, on one occasion only, during the investigation.  (See paragraph 16, LRA Code of Practice for Disciplinary and Grievance Procedures).  This was not done.

52.	The issue of the paint fumes appears to the tribunal to be a distraction.  Nevertheless the presence of the painter or painters, rather than the paint fumes, was a complicating factor and it does not appear to have been sufficiently considered during the disciplinary process.  

53.	The tribunal concludes that, looking at the alleged misconduct and at the investigation and disciplinary process, the employer did not act fairly in dismissing the claimants summarily or indeed in dismissing them at all.  There is no evidence of any contributory misconduct on the part of either claimant.  

Remedies

FIRST-NAMED CLAIMANT (MRS SAMPSON)

54.	Mrs Sampson gave evidence that after her dismissal she had made an attempt to set up a self-employed courier business with her husband doing the driving and with her doing deliveries.  However once she realised that she would not be getting a reference from the respondent she did not pursue the matter any further.  Since Mrs Sampson’s husband was sufficiently incapacitated to cause Mrs Sampson to claim invalid care allowance in respect of him, the tribunal does not accept that this was a realistic possibility at any stage and the tribunal further notes that no other attempt has been made by Mrs Sampson to obtain alternative employment.  The claimant appears to have effectively retired at that point.  While it is the normal practice that a compensatory award would, firstly, include loss of earnings up to the date of hearing, that together with every other component of a potential compensatory award is subject to the duty of a claimant to mitigate loss.  A claimant cannot expect a compensatory award to automatically cover the period up to the date of the hearing without any reference to that duty to mitigate loss.  That would allow the liability of an employer to be fixed by reference to the vagaries of the tribunal listing system, the availability of counsel, etc.  The tribunal in this case take the view that the first-named claimant, even allowing for the fact that she had been dismissed and allowing for the difficulties which would inevitably be consequent on her greater age, would have been able to obtain equivalent employment, perhaps not in the security field, within 36 weeks of the date of dismissal. The compensatory award is therefore limited to 36 weeks loss of earnings.  

55.	Basic Award:-

20 years x 1.5 weeks x £255			=			£7,650.00

Loss of Statutory Rights				=			 £ 310.00

Compensatory Award:-

36 weeks x £199.85					=			 £7,194.60
									TOTAL	£15,154.60

SECOND-NAMED CLAIMANT (MR WALKER)

56.	Mr Walker stated that he had commenced part-time employment with the PSNI on 11 March 2007.  He had further obtained full-time employment with Belfast City Airport, again in security work, and that he had indeed briefly worked in May 2007 at Belfast City Airport.  However, he only worked there for a few days because it emerged that the training which was required for the PSNI part-time post conflicted with his duties at Belfast City and he decided to give priority to the PSNI part-time work.  It was of course entirely the second-named claimant’s choice to accord whatever level of priority he wished to his part-time employment.  However it cannot be the case where a claimant has full-time employment available and foregoes that opportunity, that his entitlement to compensation for loss of earnings should continue.  The tribunal has no evidence in relation to the wages on offer at Belfast City Airport.  However it concludes that liability in respect of the compensatory award terminated when the second-named claimant took up employment at Belfast City Airport in May 2007.  Again no precise date has been given and therefore the compensatory award will be in respect of the loss of wages occasioned between the date of dismissal and 1 May 2007.  

57.	Basic Award:-

Statutory Maximum of £280 x 2		=				£560.00

Loss of Statutory Rights			=				£310.00

Compensatory Award:-

£219.23 x 14					=				£3,069.22

Less P/T PSNI earnings:
£111.28 x 7  =  £778.96			=				£2,290.26

								TOTAL	£3,160.26

58.	This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing:	25 – 28 February 2008, Belfast.

Date decision recorded in register and issued to parties: