THE INDUSTRIAL TRIBUNALS

CASE REF:	7530/09

CLAIMANT:			William Stanley Taylor 

RESPONDENT:		Sword Security (NI) Limited

DECISION

The unanimous decision of the tribunal is that the claimant has not been dismissed by the respondent as defined under Article 127 of the Employment Rights (Northern Ireland) Order 1996 and dismisses the claimant’s claim of unfair dismissal. The respondent shall pay the claimant £280 in respect of holiday pay outstanding to him on termination of his employment.

Constitution of Tribunal:

Chairman:		Ms M Bell

Members:		Mr R Lowden
Mr R McKnight

Appearances:

The claimant appeared and represented himself.

The respondent was represented by Mr Sheridan of Peninsula Business Services Ltd.

1.	The claimant claimed that he had been unfairly dismissed by the respondent, by way of constructive dismissal, following being informed that he would no longer be required to do his job as an escort driver and thereafter receiving a letter which, in his view, suggested that he was responsible for robberies which had taken place against the respondent’s client Bond Delivery.  The claimant also complained that he had not been paid holiday pay due to him.

2.	The respondent in its response denied the claimant’s claims.

Issues

3.	The issues to be determined by the tribunal were:-

(1)	Is the claimant due outstanding holiday pay?

	(2)		Was the claimant dismissed?  If so,

	(3)		Was the claimant unfairly dismissed?
	
Sources of evidence

4.	The tribunal considered the claim, response, agreed bundle of documentation, heard oral evidence from the claimant and from Mr Clifford Jamison, a director of the respondent company, and considered a letter dated 13 April 2010 from the respondent, copy contract of employment enclosed therein and letter dated 10 April 2010 from the claimant in respect thereof.

Findings of facts

5.	The respondent is a provider of security services to a broad range of clients including retail outlets, construction sites and offices.

6.	The claimant gave evidence that he was employed by the respondent as an escort driver to specifically carry out escort duties and cigarette deliveries. On consideration of all the evidence before it the tribunal finds that the claimant was in fact employed by the respondent on 1 May 2006 as a security officer and the claimant signed a contract on 19 May 2006 to confirm his acceptance of employment with the respondent on the terms and conditions set out therein.

7.	The claimant’s contract of employment states that

 	‘whilst you will initially be allocated to work at site ID 121, it is a condition of employment that all employees agree to work at any of the company’s contract assignments. Your normal hours of work each week are 48 and your employment is deemed to be full time. The security industry operates 24 hours per day every day of the year ,and you will normally be required to work on any day of the week and hours of the day on a rostered basis, in accordance with the Personnel Handbook.’

8.	The claimant was assigned to carry out duties for the respondent’s client Bond Delivery as an escort driver.  His duties involved following lorry deliveries from a cigarette manufacturer to various locations. The claimant initially worked shifts from 6.00am to 2.00pm Monday to Friday, but these hours were later altered at the request of the head of security at the cigarette manufacturer, to 5.45am to 1.45pm Monday to Friday, being 40 hours per week for which he received gross weekly pay of £240 being £200 net. This was the only assignment that the respondent had for escort duties on behalf of a client.

9.	Under the Private Security Act 2001 new requirements were due to come into force from 1 December 2009 such that all persons employed in the private security industry must hold a licence issued by the Security Industry Authority (SIA).

10.	To assist its employees with the forthcoming requirement for an SIA licence the respondent introduced a savings scheme in or around October 2008 to help employees put a small amount of money by each week toward the cost of obtaining a licence.  At that time the respondent was one of approximately seven training organisations in Northern Ireland recognised to provide the training required for the examination to obtain an SIA licence. To further help its employees the respondent was prepared to facilitate unpaid time off work to undergo its training programme, to provide its employees training for free and to pay for their examination fee. The cost of obtaining a licence was otherwise expected to be in the region of £250-£300 for training and £45-£70 for the examination fee, in addition to the £245 licence fee.

11.	The claimant was aware of the forthcoming change in the law and the need to obtain a licence to remain in the security industry but chose not to participate in the respondent’s savings scheme to put money by to pay for the licence.

12.	At 5.45pm on 14 September 2009 the claimant was called into the respondent’s office by Mr Jamison and informed that the claimant was booked on a training course beginning the next day for the SIA licence, this was the first that the claimant knew about the course being booked for him and he indicated that he was unhappy about it, he was then told that the security officer whom he had been training over the last week would be doing his job from the following morning.  The claimant asked if he did the course would he be put back on to driver escort duties on completion of it but Mr Jamison replied no. The claimant expressed his displeasure, but Mr Jamison pointed out to him that the respondent was entitled to remove him from these duties under the terms and conditions of his employment and asked the claimant to telephone him the next day to find out what he would be doing.

13.	On 15 September 2009 the claimant tried without success to contact Mr Jamison from 9.30am until he succeeded at 3.00pm.  In the interim the claimant sought advice from the Labour Relations Agency and gave evidence that he understood from their advice that his contract of employment had been varied because he had carried out nothing but escort duties for over three years for the respondent. When the claimant spoke with Mr Jamison at 3.00pm he was offered an assignment locking up premises on the 
Boucher Road, involving five, three hour shifts Monday to Friday from 7.00pm-10.00pm and one three hour shift on a Saturday from 2.00pm-5.00pm amounting to 18 hours, and was told that he would be given two further shifts to make up his contractual hours and pay. The claimant asked the respondent how he would get to work, Mr Jamison replied that he did not know and the claimant refused the assignment offered to him. The claimant gave evidence that he had previously paid the respondent to allow him to keep the respondent’s van, which he used for escort duties, at home and as he was now without it and had made other arrangements for his car for the rest of the week, he was without transport.

14.	On 16 September 2009 the respondent wrote to the claimant enclosing a questionnaire asking him for a reason why if he did not wish to apply for his licence through the respondent. In its letter the respondent pointed out that it had on numerous occasions written to him regarding the SIA licensing, that he had refused the savings scheme offered and as it takes nearly twelve weeks to get a licence the last of the respondent’s training courses would run before the end of September 2009 as previously stated.  It warned the claimant that without the licence his future would be in jeopardy as all the positions with the respondent would require a licence by 1 December 2009 and asked the claimant for evidence within the next two weeks if he was applying for the licence independently through another company so as to make sure that he would have it by 1 December 2009 as it had to start necessary recruitment, training and administration for licensed replacements.

15.	The claimant wrote a letter to the respondent on 16 September 2009 raising a grievance that being called in on 14 September 2009 and told someone else would be doing his job amounted to him effectively losing his job. He stated that whether or not he had the SIA licence it would be reasonable to assume that he could continue doing escort duties until 1 December 2009 and requested in writing; reasons why he was removed from duties; shifts with pay and timings similar to what he had been doing; and the respondent’s future plans for him with the SIA licence.

16.	By letter dated 21 September 2009 the respondent informed the claimant that Bond Delivery had contacted the company requesting that he be removed from the escort driving position with them due to concern that he had become complacent with his job and whilst they did not hold him responsible for the robberies of their lorries, they felt these could have possibly been prevented, and that Mr Jamison had already contacted him and asked him not to attend the site. The claimant was assured that,

‘this action is not to be regarded in any way as disciplinary action but as a holding measure while we speak to the client on your behalf.

The company has no alternative but to respect client wishes as it is part of the service level agreement /contractual arrangements that they insist that Sword Security (NI) staff are removed from site when there are ongoing issues of concern to investigate.

In order to make more formal representations on your behalf I feel it would be beneficial to speak with you to discuss this matter, to enable us to establish the facts surrounding the matter. This meeting will also give you the opportunity to put forward your explanations and points of view.’

The claimant was invited to a meeting to take place on 25 September 2009 and advised that he could be accompanied. He was warned however that,

‘if  we are unable to persuade the client to allow you to continue to work on their premises, and we have no alternative employment for which you can be considered, then your contract may be terminated. However we will seek to avoid this if possible.

After this meeting I will contact the client to discuss your situation with a view to persuading them that they should allow you to continue to work on their premises.’

17.	The claimant was unable to attend on 25 September 2009 and so the meeting took place between the claimant and respondent on 29 September 2009.  The claimant’s grievance letter was read out and points therein discussed. The respondent indicated that it needed to take steps to ensure government legislation was met.  The need for an SIA licence was discussed with the claimant along with the respondent’s concern that it needed a definite answer as to whether the claimant intended to do the SIA training so that it could plan ahead due to the time scale involved in getting a licence which the respondent believed to be longer than eight weeks but the claimant considered to be less. The tribunal accept the respondent’s evidence that a period of approximately eight weeks was a realistic time scale to allow for an individual to complete the necessary training, undertake the examination, to apply to the SIA for a licence, to allow for required security checks before issue of the licence to be undertaken, and for a licence then to be issued and received. The respondent expressed that he felt it was very early to be asked to make a decision and he was not sure whether to remain in the security industry. The claimant’s removal from Bond Delivery escort duties was discussed along with the respondent’s hope over the last month to offer him alternative employment as he was a reliable employee who they wished to keep on for as long as possible. The claimant raised concerns that if Bond Delivery had asked for his removal this should have been put in writing to the respondent and he felt that he was being called dishonest due to his removal from their site. The claimant was assured that this was not the case. The respondent’s proposed letter to Bond Delivery making representations on behalf of the claimant was read by the claimant and the respondent agreed to amend it to include the claimant’s views as to his good service shown by only 5% of robberies having occurred when he was on duty.

18.	The respondent considered the claimant a diligent and reliable employee, his time keeping was impeccable, he did not take sick absence, he was extremely dependable and the respondent wished to see the claimant reinstated to the assignment as escort driver and so wrote on 30 September 2009 and 9 October 2009 and made a number of telephone calls to Bond Delivery putting forward the claimant’ view as to his worthy service and formally requesting that they consider allowing him back on site. Despite the respondent’s attempts no formal written response was forthcoming but it was indicated verbally to the respondent that Bond Delivery were only following the requirements of the cigarette manufacturer for whom they worked.

19.	The respondent between September and November 2009 endeavoured to find the claimant alternative assignments as close to home and as near to his previous shift times as possible and offered a number of assignments to him at Belvoir Park Hospital, City Side Retail Park and Hilden Mill, but these were all turned down by the claimant for a number of reasons including that he did not like the shift pattern, that he had to go away to England, and that it would interfere with other employment he had with Tesco.

20.	On 2 October 2009 the respondent again wrote to the claimant with a questionnaire asking him to give the reason why if he did not wish to obtain his SIA licence through the respondent. 

21.	Solicitors wrote to the respondent on behalf of the claimant on 7 October 2009 setting out that the claimant had never received any verbal or written warning, questioning the claimant’s personal liability to pay for an SIA licence and suggesting that the alleged complaint from Bond Delivery amounted to defamation.  It was also stated that as the claimant had worked in a static job 5.45am to 1.45am for over three years if the respondent decided to change these working hours then they must be reasonable and that it was certainly not reasonable to ask him to work evening shifts and suggested on the brief details received by them from the claimant that the respondent was trying to push the claimant out and this was a clear case of constructive dismissal. The respondent was asked to address these matters and provide proper working shifts to the claimant.

22.	The respondent wrote to the claimant on 9 October 2009 putting to the claimant that it had no alternative but to respect it’s client’s wishes following its request for his removal from the site due to concerns they had raised over his performance/conduct, that they had discussed these issues and his comments with him at the grievance/investigatory meeting  so the respondent could write to the client in an effort to get him re-instated which it had done on 30 October 2009 and 8 October 2009 but that the client had not responded. The respondent invited the claimant to another meeting on 13 October 2009 to discuss matters.

23.	A meeting took place between the claimant and respondent on 13 October 2009 and the claimant was asked if he had made a decision yet in respect of the SIA licence training, he replied that he was leaning toward not doing the training. The respondent pointed out that it needed to know by 14 October 2009 as its last course was beginning that week, ending the following week, and so the claimant arranged to let the respondent know his intentions.  When asked about any other issues the claimant indicated disappointment that he had not received holiday pay.

24.	On 15 October 2009 the claimant rang the respondent and confirmed that he did not wish to attend the training course and apply for an SIA licence as he did not wish to remain in the security industry.

25.	On 16 October 2009 the respondent replied to the claimant’s solicitors letter of 7 October 2009 pointing out that there were no warnings held on file by it against the claimant, explaining the  position regarding the SIA licence and its saving scheme to assist all security officers to save for it, that Bond Delivery’s alleged complaint was not said with malice, that clients were permitted to request that employees be removed and that the client felt the claimant had become complacent and that this had an indirect bearing on the robberies which took place. It outlined the respondent’s endeavours on the claimant’s behalf to have the client reconsider the matter and pointed out rather than terminate the claimant’s employment due to third party pressure they had offered him in the absence of any other escort driver position with shifts from 5.45am to 1.45pm alternative work that was reasonable and close to his home, including day shifts, all of which were turned down. It finally pointed out and included a copy page from the respondent’s handbook relating to its requirement that all staff to be able to adjust, be mobile and flexible regarding their position as it is required of the business.

26.	The respondent sent the claimant a letter on 21 October 2009 terminating his employment with effect from 1 December 2009 as a consequence of the claimant’s confirmation that he did not wish to apply for an SIA licence and wished to get out of the security industry. The claimant was given a right of appeal.

27.	The claimant’s solicitors wrote to the respondent on 4 November 2009 indicating that proceedings would be issued for constructive dismissal.

28.	On 12 November 2009 the claimant wrote to the respondent,

‘I now feel because of the disgraceful way your company has treated me over the past few months I am submitting my resignation as from this date 12-11-09.  Due to your actions toward me I doubt If I will ever want to work in security again.  Having not received any wages from you since 14-09-09, also I waited your 28 days for holiday pay which was owed to me, and you still had not the decency to pay it, not to mention the £240 paid by me for the stolen radio. Then for the comments made in your letter dated 21-10-09 reference robberies, and possible prevention, made it clear to me that I could no longer work for your company.’

29.	The respondent wrote to the claimant on 18 November 2009 inviting him to a grievance hearing on 24 November 2009 but the claimant’s solicitors sent a letter on 24 November 2009 declining the invite on his behalf.

30.	The respondent confirmed acceptance of the claimant’s resignation by letter dated 7 December 2009. 

31.	Mr Jamison confirmed at hearing that the claimant is owed by the respondent seven days holiday pay amounting to £280.

Legislation

32.	The industrial tribunal has jurisdiction under The Industrial Tribunal’s Extension of Jurisdiction Order (Northern Ireland) 1994 to deal with an employee’s claim for damages for breach of his contract of employment or for a sum due under that contract.

33.	Under Article 126 of The Employment Rights (Northern Ireland) Order 1996 an employee has the right not to be unfairly dismissed by his employer.  

34.	Circumstances in which an employee is dismissed by his employer include at Article 127(c) of the 1996 Order if the employee terminates a contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.

35.	Whether an employee is entitled to terminate his contract of employment is to be determined in accordance with contract law. It is established in case law that it is not enough for the employee to leave merely because his employer acted unreasonably but is a question of whether his employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or, which shows that the employer no longer intends to be bound by one or more essential terms of the contract. Harvey on Industrial Relations and Employment Law /Division D1 Unfair Dismissal/3 discusses termination by the employee/constructive dismissal at paras 401-600 and at para 403 sets out how the English Court of Appeal has made it clear that in order for an employee to be able to claim constructive dismissal four conditions must be met:

‘(1)	There must be a breach of contract by the employer. This may be an actual breach or anticipatory breach.

(2)	That breach must be sufficiently important to justify the employee resigning, or else it must be the last in a series of incidents which justify his leaving. Possibly a genuine, albeit erroneous interpretation of the contract by the employer will not be capable of constituting a repudiation in law.

(3)	He must leave in response to the breach and not for some other, unconnected reason.

(4)	He must not delay too long in terminating the contract in response to the employer’s breach, otherwise he may be deemed to have waived the breach and agreed to vary the contract.’

36.	Terms may be implied into a contract in a variety of ways, including custom whereby if a term is regularly adopted it may be possible to assert that it has become customary and falls to be implied into every contract in that trade or industry or area. The courts will not however lightly find a custom and require the custom asserted to be ‘reasonable, notorious and certain’. 

37.	Many forms of unreasonable conduct will constitute a breach of the implied term of trust and confidence in the employment contract and it is recognised that there is an implied duty such that the employer shall not without reasonable and proper cause conduct itself in a manner calculated and/or likely to destroy or seriously damage the relationship of confidence and trust between the employer and employee. Conduct needs to be repudiatory to breach the implied term of trust and confidence. 

38.	An express contractual term may be varied but for the new contractual term to be enforced it must be obvious and precise, that is, certain as to what the new term is.
 
39.	Under Article 130 of the 1996 Order, when a dismissal has taken place, in determining whether the dismissal is fair or unfair it is for the employer to show the reason for dismissal and that it is either a reason set out at paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

Application of law to facts found

40.	Based on the respondent’s acceptance of the claimant’s claim for outstanding holiday pay the respondent shall pay the claimant £280 in respect thereof.

41.	On consideration of all the evidence before it the tribunal finds that the four conditions required for an employee to be able to claim constructive dismissal have not been met and are not satisfied on a balance of probabilities that the claimant has terminated the contract under which he was employed in circumstances in which he was entitled to terminate it without notice by reason of the respondent’s conduct. 

Taking the four conditions in order:

(1)	There must be a breach of contract by the employer.

The claimant claimed that he had suffered an actual breach of his contract by the respondent’s action of removing him from escort duties and failing to offer alternative work with similar timings and pay on the basis that the express terms in his contract of employment had been effectively varied as a result of him having remained on the escort driver assignment for Bond Delivery for more than three years. 

The tribunal considers that express provisions in the claimant’s contract of employment made it quite clear that the claimant could be assigned to any of the respondent’s contract assignments and required to work 48 hours per week at any time of the day for the pay stated therein and that it is quite clear from the terms upon which the claimant was engaged that there was a need for flexibility because there was possibility of change due to the nature of the industry. The tribunal is not persuaded on the evidence before it that on a balance of probabilities the claimant’s express contractual terms have with certainty been varied to those he enjoyed whilst carrying out escort duties nor by custom such that they were reasonable notorious and certain simply by virtue of the claimant remaining on the escort driver assignment for more than three years. 

The tribunal furthermore does not find that a breach of the implied term of trust and confidence has occurred as a result of the claimant being removed from escort duties at the request of the respondent’s client. The tribunal considers that the respondent in the circumstances did all it could to make clear to the claimant that he was in no way being held responsible for the robberies that had occurred and made representations on behalf of the claimant and tried to have him reinstated to the escort duties. The respondent furthermore in the interim in the absence of any other escort driver assignments offered the most suitable available alternative assignments that it had to the claimant and which it was entitled to  require the claimant to undertake under the express terms of his contract of employment. In all the circumstances the tribunal is satisfied that the respondent has not without reasonable or proper cause conducted itself in a manner calculated and/or likely to destroy or seriously damage the relationship of confidence and trust between the claimant and the respondent. 

(2)	That breach must be sufficiently important to justify the employee resigning, or else it must be the last in a series of incidents which justify his leaving.

The tribunal is not persuaded on the evidence before it that a breach of an actual or implied fundamental term of the claimant’s contract of employment going to the root of the employment relationship between the claimant and respondent had occurred.

(3) 	He must leave in response to the breach and not for some other, unconnected reason.

The tribunal is not satisfied on a balance of probabilities on the basis of all the evidence before it, including the claimant’s apparent ongoing delay and reluctance to confirm whether he intended to undergo the training necessary for an SIA licence and to remain employed in the security industry within a realistic time scale before 1 December 2009, that the claimant chose to leave the respondent’s employment entirely as a result of his removal from the escort driver assignment, but finds that the requirement for him to obtain an SIA licence by 1 December 2009 was also a factor. 

(4)	He must not delay too long in terminating the contract in response to the employer’s breach, otherwise he may be deemed to have waived the breach and agreed to vary the contract.

The tribunal considers that the claimant did not act quickly in coming to a decision to terminate his employment and that even if it had found that a fundamental breach of an actual or implied contractual term had occurred, the claimant’s prolonged delay between the meeting on 	
14 September 2009, and respondent’s letter to the claimant on 
21 September 2009 by reason of which the claimant alleges he resigned by letter dated 12 November 2009, would have resulted in a waiver in the tribunal’s opinion of any such alleged breach.
 
Conclusion

42.	The unanimous decision of the tribunal is that the claimant has not been dismissed as defined in Article 127 of the 1996 Order and dismisses the claimant’s claim of unfair dismissal. The respondent shall pay the claimant £280 in respect of holiday pay outstanding to him on termination of his employment.

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

Chairman:

Date and place of hearing:	8 April 2010, Belfast.

Date decision recorded in register and issued to parties: