![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
United Kingdom Employment Appeal Tribunal |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Scottish Prison Service v Laing (Unfair Dismissal : Reasonableness of dismissal) [2013] UKEAT 0060_12_1405 (14 May 2013) URL: https://www.bailii.org/uk/cases/UKEAT/2013/0060_12_1405.html Cite as: [2013] UKEAT 0060_12_1405, [2013] UKEAT 60_12_1405 |
[New search] [View without highlighting] [Printable RTF version] [Help]
At the Tribunal | |
Before
THE HONOURABLE LADY STACEY
MR P HUNTER
MR M SIBBALD
APPELLANT | |
RESPONDENT |
For the Appellant | MS M SANGSTER (Solicitor) Dundas & Wilson CS LLP Solicitors Saltire Court 20 Castle Terrace Edinburgh EH1 2EN |
For the Respondent | MR A HARDMAN (Advocate) Instructed by: R S Vaughan & Co. 114 Union Street Glasgow G1 3QQ |
SUMMARY
UNFAIR DISMISSAL – Reasonableness of dismissal
The Employment Tribunal found that the Scottish Prison Service had unfairly dismissed Mr Laing and that he had contributed to his dismissal to such an extent that 65% should be deducted from any award. They found that there was insufficient information for them to decide on pension loss and continued the matter for a further hearing or written submissions.
The Scottish Prison Service appealed against the finding of unfair dismissal and further argued that if the dismissal was unfair the contribution by Mr Laing had been 100%. Mr Laing cross-appealed on the question of contribution, his first position being that the ET's determination should not be changed and his second position being that if it were to be changed, then it should be a finding of no contribution at all. The decision of the EAT is that the dismissal was not unfair and the Employment Tribunal's decision is overturned. The EAT has decided that if they were required to consider the question of contribution, then Mr Laing contributed 100% to his dismissal. The Respondent took issue with the ET continuing the case for further information about pensions. The EAT decided that that was a matter entirely within the discretion of the ET and they were entitled to make the order made by them.
THE HONOURABLE LADY STACEY
Background
"It is alleged that on 7 June 2010 at/or around 14:20 hours within Munro Hall at level 1 you were negligent in your duty in failing to take appropriate action when an incident occurred."
A report was made following investigation by a Mr Barry Fowler. In the course of that investigation the Claimant was shown the CCTV footage and he was interviewed. The prisoner, the other prison officers, and nursing officers who were in the hall at the time were interviewed and telephone statements were taken from the doctor and other nurses. Mr Fowler reached the conclusion that there was a case to answer in respect of alleged gross misconduct by the Claimant.
1. That the hearing had taken place before the criminal trial and that the hearing of the disciplinary procedure for all four men was taken by the same person. IDAB did not allow the appeal on that basis.
2. The conclusion that there had been an assault on the prisoner was unjustified. IDAB considered that there were various sources of evidence to which Mr Inglis had had regard and they were satisfied that there was evidence entitling him to find that the prisoner had been assaulted.
3. Reference was made to another incident in another prison in which it was suggested that there had been an assault, but no one reported it to the authority. IDAB found that to be irrelevant.
4. There had been an inadequate enquiry regarding the removal of the prisoner to another unit. IDAB did not regard that as significant.
5. It was maintained that the Claimant had in fact intervened by taking appropriate steps once he understood what was happening. IDAB considered that Mr Inglis had had before him material entitling him to accept that the Claimant had heard shouting and swearing and gone to the interview room to investigate. He then saw a situation that made him very uncomfortable and while he did not take full control of a situation he did appeal to this prison officer to desist. IDAB found that the delay in personally intervening or calling for more assistance (by pressing his personal alarm) or taking more forceful control of the situation was not adequately explained by his assertion before them of his being confused or fearful of the potential consequences. IDAB also found that the Claimant may have been fearful of the other prison officer's potential physical reaction to him and may have had concern about how colleagues might treat him if he reported the matter. They found that that was part of the job and that he paused for too long before taking effective action.
6. It was asserted that Mr Inglis did not explain why he did not believe all of the Claimant's evidence. IDAB found that Mr Inglis broadly accepted the version of events given by the Claimant but that the fundamental issue was whether or not the Claimant's response to the events was appropriate and acceptable and that Mr Inglis had correctly considered that issue.
7. It was argued that the prison officer who carried out the assault was well known to be volatile and that the Respondents had failed in their duty of care to the Claimant and other staff. While IDAB accepted there was some evidence that that prison officer behaved inappropriately, they noted that it was for that reason that it was important that all staff report significant incidences of inappropriate or unacceptable behaviour.
8. It was argued that the decision was perverse. IDAB disagreed on the basis that there was evidence to support the complaint, and that the level of intervention by the Claimant was inadequate.
9. It was argued that it was unreasonable to recommend dismissal in view of the Claimant's length of service, that he was not the instigator, that no one came to his assistance and that he had a good work record. IDAB considered these matters and found that "there are few more serious types of misconduct than allowing colleagues to act so inappropriately and unacceptably without taking strong and determined action and ensuring the matter is fully reported to senior management."
1. The prison officer had been allocated to work in a location he rarely worked in and staff he had never worked with, working with prisoners he had never worked with and he knew nothing of the working regime. Whilst this will never militate against not taking appropriate action, the IDAB had some sympathy with the fact that he had no handover and no orientation and no idea of the style of prison management adopted by the other three officers who regularly worked together.
2. The IDAB noted when the incident began to develop when the prisoner was put in the interview room that the prison officer was not on the flat and could conceivably not know who if anyone was in the interview room.
3. The IDAB considered that he should have sought further information when he was told there was a security issue and is due criticism and must take responsibility for that failing.
4. The IDAB accepted the possibility that the prison officer could have been unaware of anything untoward going on until he saw the prison officer who carried out the assault enter the interview room and heard him shouting and swearing. The IDAB thought long and hard about this aspect and the extent to which the prison officer who carried out the assault's behaviour would trigger a more appropriate response than the other prison officer chose to take.
5. Even though the IDAB accepted the possibility that the prison officer could conceivably have not seen the assault he still failed in his duty. The IDAB however saw his failure as being of a lesser magnitude than if he had seen the assault. The prison officer still fairly failed in his duty and this in and of itself is very serious however the IDAB felt that dismissal because of the mitigations was just too harsh an outcome.
6. The IDAB also looked at the CCTV footage and thought it was possible given the site lines that the prison officer could only see part of the interview room and of that part could from his viewpoint conceivably only see the upper part of the room.
7. Whilst the prison officer admitted to hearing shouting and swearing the IDAB felt there was not conclusive evidence he saw the prisoner being assaulted. For the IDAB the balance of probability in favour of suggesting the prison officer was aware of the assault was not sufficiently well enough evidence to justify the decision.
The IDAB went onto consider consistency and severity and proportionality and stated:
"Consistency: the SPS regard the safety and protection of prisoners as a serious issue. Staff who are deemed to have failed or been negligent in their duty of care particularly in relation to assault can normally expect the most severe sanction of dismissal. In this case the mitigations were such that by a very small margin the [prison officer's] appeal was upheld.
Severity and proportionality: [the prison officer] was negligent in his duties. He should have and could have done more. His only saving grace is the fact of his relative ignorance of the process, procedures and people in the area he was in and ignorance of what was normal this was allied with some doubt about what he could actually see from his viewpoint."
It was submitted before the ET that the reasons for dismissal of the Claimant was his gross misconduct and that the decision to dismiss the Claimant was not inconsistent with the decision not to dismiss the other officer. It was argued that each decision was within the band of reasonable decisions open to the Respondent. There was a clear and rational basis for distinguishing the cases and in terms of the case of Securicor v JP Smith [1989] IRLR356 the test was whether the appeal panel's decision was so irrational that no employer could have reasonably accepted it.
1. Both prison officers were experienced, the Claimant having 17 years and the other 20 years.
2. Both were charged with failing to deal appropriately with the same incident and failing to report the same incident. Both these allegations were found to be proved against both of them.
3. Both were subject to the same standards of behaviour and codes of conduct.
4. The other prison officer had a view of the prisoner officer who carried out the assault going through the interview room door; he heard the noise of upset furniture and he heard bawling and shouting. He did nothing to intervene and then walked away. The Claimant did not see the prison officer going through the interview room door but was alerted to the situation by the noise of upset furniture and bawling and shouting. He went to the interview room door to see what was happening and failed to intervene. But it was not rational to consider that the distinction meant that they were not truly parallel circumstances and that one should be dismissed and the other not.
5. Neither the Claimant nor the other was considered to have colluded or be complicit in the incident. Both were therefore unprepared for the assault.
"The key points the IDAB focussed on in terms of why [the other prison officer] should not be dismissed was very much on the basis of mitigation and reconsideration of the balance of probability assessment made by Mr Inglis. The IDAB recognised the other prison officer had been allocated to work in a location he rarely worked and staff he had never worked with, working with prisoners he had never worked with and knew nothing of the working regime. Whilst this will never mitigate against not taking appropriate action the IDAB had some sympathy with the fact that he had no handover and no orientation and no idea of the style of prison management adopted by the other three officers who regularly worked together."
The ET found that any distinction was irrational in that IDAB themselves found that the reasons given will "never mitigate against not taking appropriate action" and in an incident where it is apparent that an assault is taking place no "style of prison management" could excuse that behaviour or be taken as a reason for the incident. The ET found that it would be irrational to consider that the lack of handover was a reason for non-intervention or non-reporting of the incident. The ET noted that the IDAB noticed that when the incident began to develop the other prison officer was not on the flat and could conceivably not know who if anyone was in the interview room. They took the view that that was irrational because it did not matter, as no prisoner should be assaulted. The ET went on to consider that the IDAB said the following:
"The IDAB accepted the possibility that the other prison officer could have been unaware of anything untoward going on until he saw the prison officer who carried out the assault enter the interview room and heard him shouting and swearing. The IDAB thought long and hard about this aspect and the extent to which Mr Doherty's behaviour would trigger a more appropriate response than the other prison officer chose to take.
Even though the IDAB accepted the possibility [the other prison officer] could conceivably have not seen the assault he still failed in his duty. The IDAB however saw his failure as being of lesser magnitude than if he had seen the assault. Mr Findlay still clearly failed in his duty and this in and of itself is very serious; however, the IDAB felt that dismissal because of the mitigations was just too harsh an outcome."
The ET took the view that in this passage it was irrational to distinguish between the other prison officer and the Claimant if the distinction was that the other was "unaware of anything untoward going on until he saw Mr Doherty enter the interview room and heard him shouting and swearing." The ET asserted that the Claimant knew nothing untoward was going to happen either. They go on to state that it was irrational to consider that the other prison officer did not see the assault. The ET took the view that this was irrational as it was patently obvious what had happened. At paragraph 168 the ET held that it was irrational to consider that there was some excuse by the other prison officer in not knowing the normal processes procedure and people. They point out that the incident was by no means normal and neither could it be excused as being normal. They also said that the IDAB only required to look at the CCTV footage to see the position of the other prison officer to realise his view of the entry into the interview room was clear.
Submissions for the Respondent
Submissions for the Claimant
Discussion and Decision
Contributory Conduct