The claimant, a prison officer, was put on notice that the respondents’ concern was an allegation of failure to act at the time of an incident. He was subsequently dismissed for gross misconduct, namely that he was ‘negligent in his duty in failing to take appropriate action when an incident occurred’ involving another officer assaulting an inmate. The claimant lost his claim of unfair dismissal,  and the Tribunal found that the approach of the respondent was not that the claimant’s conduct was premeditated but that it was a matter of him failing to act once he knew, at the time, that something was about to happen. The Tribunal rejected the argument that the claimant had been found guilty of premeditated conduct, a charge of which he had not been given prior notice. The claimant was well aware of the case he had to answer, the detailed investigation report having been made available to him and the requirements of fair notice had been satisfied. The claimant appealed on basis that the Tribunal had erred in its application of Strouthos v London Underground Ltd [2004] IRLR 636.

The EAT dismissed the appeal. Whilst the EAT had no difficulty in agreeing with the proposition that an employee is entitled to fair notice of any disciplinary “charges” against him and that an employer cannot fairly dismiss for a reason to which the employee was never fairly alerted (Strouthos; Silman) there was no question of that having occurred in this case.  Quite apart from a reading of the Tribunal’s judgment, it was apparent that the claimant’s entire submissions were based on a hypothesis that the claimant had been dismissed for premeditated conduct rather than on any of the Tribunal’s findings. That hypothesis, however, was simply not right. The claimant’s submissions took no account or no proper account of the Tribunal’s findings on that issue.

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Appeal No. UKEATS/0032/12/BI

EMPLOYMENT APPEAL TRIBUNAL

52 MELVILLE STREET, EDINBURGH, EH3 7HF

At the Tribunal

On 18 July 2012

Before

THE HONOURABLE LADY SMITH

MR M R SIBBALD

MRS G SMITH

MR THOMAS LEONARD (APPELLANT)

SCOTTISH PRISON SERVICE (RESPONDENTS)

JUDGMENT

For the Appellant
MR L G CUNNINGHAM (Advocate)
Instructed by:
Messrs Levy & McRae Solicitors
266 St Vincent Street
Glasgow
G2 5RL

For the Respondents
MS M SANGSTER (Solicitor)
Dundas & Wilson CS LLP Solicitors
Saltire Court
20 Castle Terrace
Edinburgh
EH1 2EN

UNFAIR DISMISSAL – Reasonableness of dismissal

Dismissal of prison officer for gross misconduct, namely that he was "negligent in [his] duty in failing to take appropriate action when an incident occurred", the "charge" of which he was given notice being in the same terms and the incident being that another officer assaulted an inmate at the young offenders' institution where they were both employed. The Employment Tribunal found as fact that the Claimant was not found guilty of or dismissed for deliberate and premeditated conduct. That finding was not appealed against as being perverse. Appeal on basis that the Tribunal had erred in its application of Strouthos v London Underground Ltd [2004] IRLR 636 dismissed as being misconceived. It proceeded on the basis that the Claimant had been dismissed for deliberate and premeditated conduct but that was not what had been found by the Tribunal nor was it what was demonstrated by the documentary evidence or the findings of the Tribunal on the evidence led.

1. This appeal concerns the dismissal by Scottish Prison Service (the Respondents) of a prison officer (the Claimant) following inappropriate and unprofessional conduct by one of his fellow officers towards an inmate of Polmont Young Offenders' Institution. His claim for unfair dismissal was rejected by an Employment Tribunal sitting at Glasgow, Employment Judge R G Christie presiding; the judgment was registered on 22 February 2012.

1. The Claimant was represented by Mr Cunningham, advocate, before the Tribunal and before us. The Respondents were represented by Mrs M Sangster, solicitor, before the Tribunal and before us.

1. A detailed investigation was carried out at Polmont when an inmate, Mr Dalgarno, made a complaint of having been assaulted by a prison officer, Mr Doherty. He was not the only officer whose actions or inactions at the relevant time, were called into question. The Claimant was put on notice, prior to the investigation, that:

"…..an investigation will take place into an allegation of gross misconduct against you.

Details

It is alleged that on 7 June 2010 at or around 1420 hours within Monro Hall, level 1 you were negligent in your duty in failing to take appropriate action when an incident occurred."

1. That is, the Claimant was put on notice that the Respondents' concern was an allegation of failure to act at the time of an incident. The investigation found, put shortly, that an incident had taken place when Dalgarno and Doherty were in an interview room together involving the former being grabbed and pulled down physically by the latter; no-one else was in the room. Another officer was outside the door. The Claimant was on duty at the desk in the hallway off which the interview room was situated. The report of that investigation, by a Mr Fowler, advised that it had exposed five respects in which the Claimant's conduct was deficient, namely:

* A failure to observe inappropriate and unprofessional conduct on the part of Officer Doherty; * A failure to intervene; * A failure to account for an unauthorised limiting of prison regime; * A failure to report; and * A failure to meet SPS standards.

1. The Claimant was called to a disciplinary hearing. The "charge" of which he was notified was that it was alleged:

"…on 7 June 2010 at or around 1420 hours within Monro Hall, level 1, you were negligent in your duty in failing to take appropriate action when an incident occurred."

Mr Fowler's report of the investigation was sent to the Claimant and his trade union representative in advance of the disciplinary hearing, which took place on 1 February 2011. By letter dated 16 February 2011, the Claimant was advised of the outcome which was that he was dismissed for gross misconduct. The nature of that misconduct was that on 7 June 2010, he was "negligent in [his] duty in failing to take appropriate action when an incident occurred." There was, accompanying that letter, a document prepared by the Governor, Mr Inglis, entitled "Outcome from Disciplinary Interview" which was in five parts – "Introduction", "The Investigation", " Summary of Findings", "Adjudication", and "Conclusion". The part headed "Adjudication" set out those matters of which the Claimant was found 'guilty' which were three in number – "1. Failure to observe or question inappropriate and unprofessional conduct by Mr Doherty", "Failure to intervene during the incident", and "Failure to report the incident." Detailed explanations of those three failures were set out under each heading.

1. We would refer to three other parts of the "Outcome" document, as they were relied on by Mr Cunningham in submission. First, at paragraph 2 of the "Summary of Findings", Mr Inglis stated:

"….the actions displayed on the day by Mr Doherty, and witnessed by Mr Leonard were planned and premeditated……..Mr Leonard did not instigate or take part in the lock up procedures, however I consider he was fully aware of what was happening and therefore it is reasonable to suggest that he had knowledge of what was about to occur". (our emphases)**

1. Secondly, at paragraph 5, he stated:

"Mr Leonard during interview agreed that during the incident he went to the flat door at the request of Mr Laing who was positioned at the interview room door. Mr Leonard states Mr Laing told him to check the door was shut. I believe based on the balance of probabilities that Mr Leonard knew he was going to check the door to ensure that no-one came in during this incident and indeed it is reasonable to suggest that at that time Mr Leonard knew that something was going on that was inappropriate.." (our emphases).

1. Thirdly, in the conclusion, he stated:

"….Mr Leonard was not the main instigator of this incident…….However, this sole incident, in my view is sufficiently serious to bring doubt to his credibility, professionalism and trust that is placed in him when caring for young offenders."

1. The Claimant appealed but his appeal was not successful. The conclusion of the Respondents' Appeal Board was, again, that Mr Leonard was negligent in that he was well aware that Mr Dalgarno was being assaulted by Mr Doherty (who was guilty of a premeditated assault), did nothing to stop it and did not report it.

1. We mean no disrespect to the carefully reasoned judgment of the Tribunal by making but brief reference to it which is all that is required given the narrowness of the issue that arose on appeal.

1. The Tribunal, in addition to making findings in fact which disclosed the background set out above, found that the approach of Mr Inglis (who gave evidence) was not that the Claimant's conduct was premeditated but that it was a matter of him failing to act once he knew, at the time, that something was about to happen. At paragraphs 89 to 90, they explain:

"89…Mr Inglis explained under cross examination by Mr Cunningham that when the claimant told him at the disciplinary hearing….that Doherty was putting Dalgarno into the room, merely "to have a word with him" , that was not necessarily wrong. Again, under further reference to the outcome document…he gave the further explanation to Mr Cunningham in cross examination, along the following lines:-

*

'….It's because of his lack of action which indicates that he knew an incident was about to occur. I'm not saying the claimant knew it was going to be an actual assault – but he came to know that something was going to happen'.*

90. The Tribunal accepted that evidence as being Mr Inglis' genuine understanding of the situation. Further, it did not appear to the Tribunal that the presence or absence of foreknowledge of what was exactly about to occur would necessarily be regarded by a reasonable employer as essential to making a finding of guilt of the allegation as it had been framed. It would have been within the range of responses of a reasonable employer to view the neglect of duty as arising in any event, even if only at the point when Doherty entered the interview room and the ruction, as described the claimant himself began. As the allegation itself stated…the crux of the matter was 'failing to take appropriate action when an incident occurred'. A reasonable employer could have left the allegation against the claimant as it was, whether he knew in advance what Doherty's actual intention was or not. A reasonable employer could quite reasonably consider that the absence of any foreknowledge did not affect the seriousness of the claimant's failures 'when the incident arose'. The allegation as written in the document Appendix IX…seemed to us quite neutral in that regard. The claimant was still found guilty of what had been alleged."

1. Mr Cunningham sought to persuade the Tribunal that the Claimant had been found guilty of premeditated conduct – a more serious charge – than that of which he been given prior notice but the Tribunal firmly rejected that argument on the evidence before them and findings in fact made. They observed, further, that the Claimant was well aware of the case he had to answer, the detailed investigation report having been made available to him (paragraph 101) and that the requirements of fair notice had been satisfied.

1. The Tribunal also observed that, in any event, had there been a procedural flaw, procedural flaws are not necessarily fatal, under reference to UCATT v Brain [1981] IRLR 224 and Silman v ICTS (UK) Limited UKEAT/0630/05/LA. The Tribunal miss out a phrase from their quotation from the former – a quotation which begins with the well known observation by Donaldson LJ that whether or not someone acted reasonably is a pure question of fact – but we do not (contrary to what was submitted by Mr Cunningham) read the Tribunal as having misdirected themselves in relation to the UCATT** guidance.

1. The Tribunal appear to have been readily satisfied (a) that the Claimant was dismissed for gross misconduct consisting of the negligence referred to in the "charge" of which he was given notice; and (b) that in all the circumstances, it was reasonable for the Respondents to dismiss him. The dismissal was not, accordingly, unfair.

1. The Notice of Appeal contained seven separate grounds of appeal. The last ground was not argued. An application had been made in relation to that ground very shortly prior to the appeal hearing, for an order that the CCTV film which was shown to the Tribunal in the course of evidence, be produced for the appeal hearing. That application was refused prior to the hearing before us as it was of doubtful competence and even if covered by that part of the hearing order which provided for an application for a note of evidence to be made, far too late.

1. The first six grounds are variations of the same theme, namely that the Claimant was dismissed for a matter of which he had not had fair notice which, on the authority of Strouthos v London Underground Ltd [2004] IRLR 635 was unfair. Mr Cunningham's submissions all proceeded on the basis that the Claimant had been dismissed for premeditated conduct. That being so, the Tribunal ought, in his submission, to have found his dismissal to have been unfair. He referred to Strouthos and to it having been followed by the Inner House in the case of Boyd v Renfrewshire Council **[2008] CSIH 36. He referred to the terms of the notification given to the Claimant at the start of the investigation and prior to the disciplinary hearing and said that if the Respondents had formed the view that a possible outcome was that the Claimant would be found to have committed deliberate and premeditated conduct, that should have been set out in the "charge" of which he was notified. That would have been consistent with paragraph 9 of the ACAS Code of Practice relating to Disciplinary and Grievance Procedures (April 2009) and the style letter included in the code.

1. Mr Cunningham observed that at investigation stage, the issue may not have been properly formulated. Post investigation, it was the responsibility of the Governor to identify the charge in the light of the investigations. Then, any specification in relation to deliberate conduct ought to have been made.

1. Mr Cunningham also referred to Silman v ICTS (UK) Limited and submitted that the Tribunal had erred in relying on it. It was concerned with the now repealed statutory dismissal procedures and a dismissal could satisfy those procedures yet still be unfair: Alexander v Bridgen Enterprises Ltd **[2006] ICR 1277.

1. Mr Cunningham submitted that the Tribunal's observations at paragraph 90 were irrelevant; the real question they should have been addressing was whether the evidence supported the reason for the Claimant's dismissal namely premeditated and deliberate conduct. He also submitted that the passages of the "Outcome" document to which we have referred in the 'Background' section above were to the effect that Doherty could not have planned what happened on his own and that they showed that the Claimant's actions were premeditated as well as Doherty's.

1. Mr Cunningham submitted that we should be "cautious" regarding the Tribunal's quotation from Mr Inglis' evidence, at paragraph 89, because although they had set the words out as a quotation, they were not a word for word record; the Tribunal said his evidence was "along the lines of". This was not, however, developed into any substantive submission.

1. We should add that Mr Cunningham at no time submitted that the only conclusion open to the Tribunal on the evidence led and facts found was that the Claimant's conduct was deliberate and premeditated (not that any of his grounds of appeal actually foreshadowed such a submission, apart perhaps from the last one which was not proceeded with).

1. Ms Sangster submitted that the appeal was ill founded. It proceeded on the basis that the Claimant had been dismissed for premeditated conduct. That, however, was not the case. The Tribunal did not so find. It was inherent in the finding that the Claimant had been negligent that at the time of his negligence, something was happening in relation to which he should have acted but that was not to say that he had engaged in premeditated conduct. Each "charge" and each of the Respondents' findings against the Claimant were about failures to act not about positive actions on his part. The Respondents' conclusion was that, in the circumstances, he was guilty of a neglect of duty. That was plain from the documentation and from Mr Inglis' evidence, which was accepted by the Tribunal.

1. Ms Sangster did not take issue with the submission that, in principle, an employee should be notified of the charges he has to meet and not dismissed for a matter which is more serious, under reference to Strouthos and Boyd. That, however, was beside the point as that was not what had happened in this case.

1. She pointed to the Claimant having made no attempt to disturb the Tribunal's findings in fact, to him having accepted that he was dismissed for negligence and to the Tribunal having heard the evidence on the matter. No question of law was raised: BT v Sheridan [1990] IRLR 2. Regarding the Tribunal's reference to the case of Silman, it arose almost by way of an 'esto' point; by the stage of the paragraph in which they referred to the case (paragraph 107), they had already made it clear that the Claimant had been found "guilty" only of that with which he had been charged, namely negligence.

1. We are readily satisfied that this appeal cannot succeed. Mrs Sangster's submissions were well made and we accept them. The Tribunal made relevant findings in fact which were not challenged and were entitled, on those findings and in the light of section 98(4) of the Employment Rights Act 1996, to decide as they did.

1. The Claimant's submissions before us did not raise any relevant point of law. Rather, they demonstrated that the appeal was misconceived. Whilst we have no difficulty in agreeing with the proposition that an employee is entitled to fair notice of any disciplinary "charges" against him and that an employer cannot fairly dismiss for a reason to which the employee was never fairly alerted (Strouthos; Silman) there is no question of that having occurred in this case. That that is so was, quite apart from a reading of the Tribunal's judgment, apparent from the fact that Mr Cunningham's entire submissions were based on a hypothesis that the Claimant had been dismissed for premeditated conduct rather than on any of the Tribunal's findings. That hypothesis, however, was simply not right. Mr Cunningham's submissions took no account or no proper account of the Tribunal's findings on that issue. He did not refer to any which supported his hypothesis. The position was, on the findings of the Tribunal, clear. The Claimant was "charged" with five specific "counts" of negligent failures to act; he was found "guilty" of three of them. The Respondents' investigations did not show that he was involved in any prior planning or conspiracy or that he formed an intention prior to the incident, to behave as he did. On the contrary, all the Respondents' findings about the Claimant concerned his behaviour once the incident had begun, as is plain from the terms of the passages in the 'Outcome' document to which we refer in the 'Background' section above, particularly from those phrases which we have italicised. The Respondents said they dismissed him for negligence, Mr Inglis was believed on that matter and doing so made perfect sense once the reactions of a reasonable employer were taken into account, as the Tribunal required to do.

1. We should add that, contrary to what seems, at one point, to have been Mr Cunningham's submission, we do not read Silman as being at odds with Strouthos so far as the issue of principle is concerned. Further, we consider that Mrs Sangster's analysis of the Tribunal's reasons to the effect that their reference to Silman* was on an "esto"* basis was correct; it was not necessary for them to consider the matter given that they had already determined that the Claimant had had fair notice and had not been found guilty of something of which the "charges" had not given him notice. They simply add what would have been their view had they had to consider the matter.

1. In these circumstances, we will issue an order dismissing the appeal.