Mr James H Cunningham v The Scottish Ministers: 4122788/2018
| Judgment Date | 05 April 2019 |
| Published date | 02 September 2019 |
| Court | Employment Tribunal |
| Subject Matter | Unfair Dismissal |
E.T.Z4 (WR)
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No: 4122788/2018
Held in Glasgow on 18, 19 and 20 March 2018
Employment Judge: Claire McManus
Mr James H Cunningham Claimant
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Represented by:-
Mr Paul Deans
(Solicitor)
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The Scottish Ministers
Respondent
Represented by:-
Ms Ilaria Moretti
(Solicitor)
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JUDGMENT OF THE EMPLOYMENT TRIBUNAL
The Judgment of the Tribunal is that:-
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• The claimant’s dismissal by the respondent was a fair dismissal and
his claim under section 98 of the Employment Rights Act 1996 is
dismissed.
REASONS
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Background
1. The ET1 claim form was submitted on behalf of the claimant against the
respondent on 14 November 2018. The claim was for unfair dismissal. No
preliminary issues arose. The ET3 response was submitted on behalf of the
respondent on 18 December 2018. There were no Preliminary Hearings in
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this case prior to this Final Hearing, which was scheduled to take place on
18, 19, 20 and 21 March 2019, but was concluded on 20 March, other than
4122788/2018 Page 2
the issue of Judgment. There were no amendments to the parties’ stated
positions in the ET1 and ET3.
Proceedings
2. Both parties were professionally and ably represented at the Hearing. Parties
relied on documents contained in a Joint Bundle, with items 1 to 50 numbered
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consecutively with pages (1) to (419). The numbers in brackets in this
Judgment refer to document page numbers in this Joint Bundle.
3. Prior to evidence being commenced, it was confirmed by the respondent’s
representative that the dismissal was admitted, and the respondent’s position
was that the dismissal was a fair dismissal on the grounds of the claimant's
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conduct and in terms of the Employment Rights Act 1996 (‘the ERA’) section
98(4). It was confirmed by the claimant’s representative that it was the
claimant’s position that the dismissal was an unfair dismissal because the
decision to dismiss was out with the range of reasonable responses. It was
confirmed that the issue for determination by the Tribunal in respect of the
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fairness of the dismissal was consideration of whether the decision to dismiss
was within the band of reasonable responses only. The claimant’s
representative confirmed that there was no issue taken with the extent of
investigation or the procedure prior to dismissal. It was accepted by the
claimant’s representative that all three strands of the test set out in BHS -v-
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Burchell are met. Reliance was placed by the claimant on alleged
inconsistency of treatment by the respondent between him and another
manager (the Control Manager).
4. Evidence was heard on oath or affirmation from all witnesses. For the
respondent, evidence was heard from Mr Allister Purdie (Governor of HMP &
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YOI Grampian, who took the decision to dismiss) and from Ms Elizabeth
Fraser (Chair of the appeal panel). For the claimant's case, evidence was
heard from the claimant himself.
5. The reason for the claimant’s dismissal involved his duties at a particular time
in respect of a particular prisoner. It was agreed that that prisoner would be
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referred to only as ‘Prisoner X’, who would remain unidentified before the
4122788/2018 Page 3
Tribunal. Parties representatives were asked if there was any issue with the
sensitivity of any content of evidence before the Tribunal. Parties’ position
was that there was not. It was agreed that individuals other than the claimant
who were involved with that particular prisoner at the material time would be
referred to, if necessary, by their own initials only.
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Issues
6. The Tribunal required to determine whether the claimant’s dismissal was a
fair dismissal in terms of the Employment Rights Act 1998 (‘ERA’) section 98,
in consideration of the respondent’s reliance on the reason for dismissal
being the claimant’s conduct, which is a potentially fair reason for dismissal
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under section 98(2)(b). It was agreed by parties’ representatives that the
question for consideration in terms of s98 ERA was whether the decision to
dismiss was within the band of reasonable responses for the respondent to
take, particularly with regard to the respondent’s treatment of the Control
Manager.
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7. If the dismissal was found to be an unfair dismissal, the Tribunal would
require to determine what award should be made, including basic award and
any compensatory award. Consideration would require to be given to what
was just and equitable to award the claimant, taking into account the
provisions of section 122 and section 123 ERA, and in particular whether
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there should be any reduction in any award to reflect an element of
contribution by the claimant to his dismissal, and if so to what extent.
Findings in Fact
8. The following material facts were admitted or found by the Tribunal to be
proven:
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(a) The respondent is a public service organisation with key
responsibilities to keep people in secure custody; care for their health
and well-being; identify the needs and risks of those individuals;
address those risks and prepare for their transfer back to the
community. The respondent’s core objective is to maintain prisoners
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in secure custody. HMP Grampian is a community facing prison with
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