SUMMARY
PRACTICE AND PROCEDURE – Bias, misconduct and procedural
irregularity
Tribunal found
to have erred in law in holding that Claimant, who was employed as a police
training officer and had withheld information relating to the whereabouts of a
known sex offender (his brother - in respect of whom a warrant for arrest had
been issued), was unfairly dismissed:
(i)
they had proceeded on the basis that, because the Claimant was employed
by Strathclyde Joint Police Board, he owed no duties to Strathclyde Police
Force, whereas the terms of the Police (Scotland) Act 1967 plainly show
that he did;
(ii)
applying the second part of the Burchell test, they had found
that the Respondent had no reasonable grounds for its belief that the Claimant
had committed an act of misconduct but their basis for that was that he was
under no duty to provide information about his brother’s whereabouts to the
police and that was erroneous; he was, plainly, in the circumstances, under
such a duty and the findings in fact showed that the Respondent had reasonable
grounds for their belief.
Appeal upheld and finding of fair
dismissal substituted.
THE HONOURABLE LADY SMITH
Introduction
1.
Andrew Cusick was a police training officer. He was dismissed for
withholding information from Strathclyde Police Force relating to the
whereabouts of a known sex offender (his brother), who had absconded and in
respect of whom a warrant for arrest had been issued.
2.
This is an appeal by Mr Cusick’s employer, Strathclyde Joint Police
Board, from a judgment of the Employment Tribunal sitting at Glasgow,
Employment Judge Alan Strain, registered on 12 August 2010, finding that
the Claimant had been unfairly dismissed, ordering reinstatement, restoration
of pension rights and awarding compensation of £26,649.
3.
We will, for convenience, continue referring to parties as Claimant and Respondent.
Background
4.
The Respondent is a statutory body (see: Police (Scotland) Act 1967 - “the 1967 Act”); and The Strathclyde Combined Police Area
Amalgamation Scheme Order 1995 – “the 1995 Order”). The Claimant entered their
employment as a police training officer on 25 October 2005. He had
previously served as a police officer with Strathclyde Police Force, for 30
years.
5.
The Claimant’s twin brother, Martin Cusick, was convicted of serious sex
offences in 2005 as a result of which he became subject to the notification
requirements of Part 2 of the Sexual Offences Act 2003 (“the
2003 Act”) for an indefinite period from which it can be inferred that his
offences were of such severity as to have led to a custodial sentence for a
period of 30 months or more (see: s.82(1) of the 2003 Act). That is, his
details were recorded on what is often colloquially referred to as the “Sex
Offenders’ Register”. In terms of section 86 of the 2003 Act, he was
under certain notification obligations to provide travel details if intending
to leave the United Kingdom, prior to doing so.
6.
On 18 October 2005, Martin Cusick left the United Kingdom without
complying with the requirement of s.86 of the 2003 Act. A warrant was issued
for his arrest. The Claimant knew of the warrant and that the police were
looking for his brother. It was not disputed that over a period beginning some
6-8 weeks after his brother’s departure up to April 2008, he received
information about his brother’s whereabouts which he withheld from the police,
despite specific enquiries being made of him. Matters came to a head in April
2008 when, at interview, he did advise the police that he believed his brother
to be in Canada on account of an email he had received from his nephew in
December 2007. He had also, at that time, been provided with a Canadian
telephone number for him, he had an email address for him and he had received
information indicating that his brother was working as a taxi driver. The Claimant’s
brother was, shortly thereafter, arrested in Canada.
7.
The Claimant was suspended and disciplinary proceedings ensued. After
investigation, it was concluded that prima facie evidence existed that
showed that the Claimant had withheld information which could have led to the
earlier arrest of his brother. He was called to a disciplinary hearing and
notified that the allegation against him was that it was alleged that he had:
“ … repeatedly failed to provide information to Police Officers
concerning the whereabouts of his brother, Martin Cusick, a registered sex
offender who had failed to comply with legislation/requirements contained
within the Sexual Offences Act 2003.”
8.
The relevant disciplinary procedures are set out in a document entitled
“DISCIPLINARY PROCEDURES FOR POLICE STAFF Standard Operating Procedures”
(“SOP”) paragraph 2.3 of which is in the following terms:
“2.3 The distinctive character of the Police Service depends
largely upon the existence and maintenance of a general rule of conduct that
inspires public confidence in its integrity. The standards of service
therefore go beyond the standards of conduct and integrity in other
organisations, as evidenced by the Police, Public Order and Criminal Justice
Act 2006. An employee of Strathclyde Joint Police Board must at all times
conduct themselves in a responsible and trustworthy manner, both within and
outwith the working environment. If there is a substantial reason/link between
the alleged misconduct with the job/workplace that could be detrimental to the
discharge of duties and/or the working relationship, then disciplinary
procedures may be invoked.”
9.
Section 34 of the Police, Public Order and Criminal Justice
(Scotland) Act 2006 makes provision for complaints to be made by members of
the public about the police and about persons “serving with the police”
(s.34(2)(f)), such as the Claimant. Under the provisions of that section, a
relevant complaint is one which expresses dissatisfaction about any “act or
omission” (s.34(2)) whether or not it occurs in the course of employment;
section 34(4) provides:
“An act or omission need not be one occurring in the course of a
person’s duty, employment or appointment (as the case may be) in order to fall
within subsection 2(f).”
Serious disciplinary offences and
gross misconduct are dealt with in Appendix B of the SOP, the preamble to which
provides:
“Gross misconduct is defined as behaviour which in the Force’s
view is subject to investigation and a disciplinary hearing warrants immediate
dismissal regardless of whether or not there have been previous warnings. Such
behaviour may occur within or outside normal working hours.”
A non-exhaustive list of examples
of conduct which will be regarded as gross misconduct follows and includes:
“17. Irrevocable breakdown in trust and confidence.”
Other matters listed include defrauding “the Force”, maliciously
damaging “the Force’s property”, and accessing “information held by the Force”
without authority.
10.
The hearing took place on 27 January 2009 and was chaired by
Detective Chief Superintendant McAllister, who had no prior knowledge of the Claimant
or his brother; he had not worked with either of them. Accordingly, whilst the
Tribunal made a finding in fact that DCS McAllister “did not consider the
Claimant’s previous service and record as a Police Officer”, the context for
that finding is that he had no prior knowledge of the Claimant’s circumstances
and there is no finding in fact that he was told anything about them at the
disciplinary hearing. Nor was there any finding in fact that they were known
to the Respondent who, as the Tribunal pointed out, were separate and distinct
from Strathclyde Police.
11.
DCS McAllister found that the Claimant had committed gross misconduct.
By letter dated 23 February 2009, he advised the Claimant of his decision,
explaining that:
“On the basis of the evidence presented to me, I am satisfied
that throughout the police enquiries to trace your brother, Martin Cusick, you
possessed information which could have assisted enquiries and expedited his
arrest…
I have concluded that you would have been aware of the
importance of the information and the potential consequences of timeous sharing
of information in your possession being the arrest of your brother…
It is my view that you permitted your understandable concerns
for your brother’s interests to outweigh your professional duty as a member of
staff of Strathclyde Police to provide information which any reasonably–minded
person would have anticipated would have been of importance to the police
investigation…
I have concluded that I have no other option than to summarily
dismiss you with immediate effect. I am of the view that your actions were
incompatible with continued employment with Strathclyde Joint Police Board:
trust and confidence has been irretrievably lost by your gross misconduct and I
do not consider that any other disposal would be appropriate in the
circumstances.”
The Claimant appealed, unsuccessfully.
The Tribunal’s Judgment
12.
The Tribunal found that the Claimant had been unfairly dismissed,
essentially because, in their view, as a civilian employee of the Respondent
not of the police, he owed no duty to the police force; that meant that the Respondent
did not have reasonable grounds for its belief that the Claimant had committed
an act of misconduct. That was, we observe, not the Claimant’s case as
articulated in the written submission prepared by counsel for the Claimant and
presented to the Employment Tribunal (the only argument advanced there is that
dismissal was an excessive sanction given the level of dishonesty involved,
given that the Claimant was not prosecuted, and given his “34 years of service
and unblemished record”) and no such submission is recorded by the Tribunal as
having been made. In the course of the hearing before us, Mr Crammond
asserted that he had in his oral presentation made a general submission
that the Respondent did not have reasonable grounds but he did not suggest that
he had articulated it so as to seek to found on the fact that the Claimant was
not employed by the police force but by the Respondent. It appears that that
matter was not aired at the hearing before the Tribunal although it
subsequently became the rationale for the Tribunal’s judgment. They state:
“31. What was accepted by all parties was that the claimant was
under no legal obligation to assist the Police with the provision of this
information. Furthermore the Tribunal observe that the Claimant was not
employed by Strathclyde Police Force and had no obligations to them under
employment law. He was employed by Strathclyde Police Joint Board as a civilian
employee. The Tribunal therefore had to consider the fact that the Claimant’s
lack of co-operation (such as it was) was with Strathclyde Police and was an
action which took place outwith the workplace.”
13.
The Tribunal’s focus would appear to be on the question of what, as a
matter of law, the Claimant was obliged to do, perhaps on the basis that there
was no provision of the 2003 Act which required him to disclose the
information. They continue:
“31. The Tribunal also considered the fact that both parties had
conceded there was no legal obligation on the Claimant to have provided this
and indeed to have co-operated with the Police. The Tribunal then had to
consider whether or not the Claimant’s alleged failings were somehow in breach
of the Standard Operating Procedures, paragraph 2.3, production 3, to the
extent that the Respondents had reasonable grounds upon which to sustain the
belief of misconduct. Having considered that, it was the Tribunal’s opinion
that any employer acting reasonably would not have considered there was a breach
of paragraph 2.3 of the Standard Operating Procedures (Production 3). The
Claimant had not done anything or omitted to do something which was unlawful. The
Claimant had not undertaken any conduct which could properly be construed as
“misconduct”. Doubtless the Respondents would have preferred the Claimant to
have provided the information to the Police but they candidly accepted that he
had no legal obligation to do so. Even if the conduct could be categorised as
“misconduct” the Tribunal is of the opinion that any employer acting reasonably
would not have concluded that there was a substantial reason or link between
the alleged misconduct with the job or workplace that could be detrimental to
the discharge of duties and/or the working relationship.”
On that basis, the Tribunal held that the Respondent had no
reasonable grounds on which to sustain a belief in the Claimant’s misconduct.
They added, without explanation, that the evidence did not show “that the
Claimant’s actions would have had an adverse bearing on his suitability for the
job” or “would affect a serious breach of trust and confidence between employer
and employee.”
14.
The Tribunal also explain that, in any event, they considered that the
dismissal was not fair. They set out their reasons for that conclusion in
paragraph 35. They were first, that the conduct complained of took place
outwith the workplace and working hours, secondly that the Claimant was not
legally obliged to provide the information, thirdly that the Respondent did not
take into account that the Claimant’s exemplary record as a serving police
officer and unblemished record as a member of their civilian staff, and
fourthly that the Claimant’s conduct was direct towards a third party. They
also found that the Claimant had not contributed to his dismissal because there
was no obligation on him to provide the information (paragraph 37).
Relevant Law
Misconduct Dismissals
15.
The Claimant was dismissed on grounds of misconduct, a potentially fair
reason for dismissal (Employment Rights Act 1996 s.98(2)). The
discussion by Arnold J, in British Home Stores v Burchell [1980] ICR 303 at p.304 of the approach to be adopted by an employment tribunal
when considering whether an employer has established misconduct as the reason
for a dismissal, is, accordingly, relevant. The three elements of his
analysis are well known (genuine belief, reasonable grounds for the belief, and
a genuine belief formed only after a reasonable investigation) and we do not
propose to rehearse them in detail. It was only the second element which was
at issue in the present case, namely whether, when the Respondent formed its
belief in the Claimant’s misconduct, it:
“…had in … mind reasonable grounds on which to sustain that
belief.”
An employer does not have to be certain as to the grounds for his
belief (AEI Cables Ltd v William McLay [1980] SC42). The test is
one of reasonableness.
16.
If the “Burchell test” is passed and the
dismissal is, accordingly, potentially fair, when it comes to considering,
under s.98(4) of the 1996 Act, whether it was fair, a tribunal requires to be
careful to make an objective assessment. It must avoid falling into what is
often referred to as the “substitution mindset”: see, for instance, London Ambulance Service NHS Trust v Small [2009] IRLR 563 CA.
It is not a matter of the tribunal asking itself whether or not they would
have dismissed the claimant. Further, the tribunal ought to consider the
question of what a reasonable employer would have done in context; that is, by
asking themselves not just what any employer, acting reasonably, would have
decided but what a reasonable employer whose business/activities were the same
as or similar to those of the respondent, would have done in the circumstances:
see Ladbrokes Racing Ltd v Arnott [1981] SC159, where the Lord
Justice Clerk referred to considering what “would have been considered by a
reasonable employer in this line of business in the circumstances which
prevailed”.
The Police
17.
Police forces in Scotland are established by police authorities and are
creatures of statute under the 1967 Act. They have no employees. The area of
Strathclyde is served by a combined police authority, namely the Respondent,
which was established by the 1995 Order. Each police force consists of a chief
constable, regular constables and special constables (1967 Act s.3). Those
persons are office- holders. They are not employees.
18.
In terms of s.9(1) of the 1967 Act, police authorities such as the Respondent
are empowered to employ civilians for certain purposes. It provides:
“9. Civilian employees.
(1) A police authority may –
(A) employ for the assistance of the constables of a police
force maintained for their area, or otherwise to enable the authority to
discharge their functions, officers who are not constables;”
19.
Section 9(1) shows, accordingly, that the only purpose for which
officers can be employed by a police authority such as the Respondent is to
assist the constables (i.e. the chief constable, the regular constables and any
special constables) of the local police force. It is, accordingly, plainly the
duty of a civilian employee such as a training officer, to assist the
constables of the relevant police force. That is the whole purpose of the role
of such an employee. To put it another way, the statutory provisions
demonstrate that an important part of the work of a police authority such as
the Respondent is to employ civilians to provide assistance to the police force
for their area.
20.
Where a police authority employs civilians, they are required to
exercise their power as directed by s.9(2):
“ 9(2) The police authority shall exercise their powers under
section 56 ( and section 63) of the Local Government (Scotland) Act 1973 so as
to secure that…………any person employed or appointed by the authority under
subsection (1) above is under the direction and control of the chief constable
of the police force.”
and, further,
the police authority’s powers so far as employing (and dismissing) civilians is
concerned, are subject to the control of the chief constable of the local
police force:
“9(4) The powers of direction and control referred to in
subsection (2) above include powers of engagement and dismissal.”
21.
Section 56 of the Local Government (Scotland) Act 1973 empowers
police authorities to make arrangements for certain functions, such as the
employing of civilian staff, to be delegated to a committee. The fettering of
that power in the manner set out in subsection (2) demonstrates that it is
inherent in the power to employ civilians that they be employed on the basis
that they are subject to the direction and control of the chief constable. In
contrast, constables are subject to the direction of the relevant chief
constable but are not subject to his/her control (section 17(2)) of the
1967 Act. The chief constable of a police force exercises greater control of
the civilian employees assisting his constables than he does of police
constables, who possess a degree of autonomy which is absent from the civilian
role.
22.
Thus, the Claimant not only had a duty to assist police constables in
the Strathclyde Police Force, under section 9(1) but he was also subject
to the direction and control of the Chief Constable of Strathclyde Police who
had the power to direct that he be dismissed. We note that the Claimant’s
dismissal was not the result of such a direction but it is, we consider,
nonetheless fundamental to a proper appreciation and understanding of the true
nature of the Claimant’s employment relationships, to take account the extent
to which he was subject and, accordingly, answerable to the Chief Constable of
the local police force, Strathclyde Police.
23.
We note that circumstances may arise in which a civilian employee is
found to have been acting as agent for the relevant chief constable: see, for
instance, the group of cases reported as Yearwood Commissioner of the
Police of the Metropolis [2004] ICR 1660, where a civilian
employee of the local police authority was held to have been acting as agent of
the Chief Constable of Merseyside in making discriminatory comments in the
course of disciplinary proceedings which he was conducting. The relevant
statutory provisions showed that the circumstances of the civilian employee’s
employment were directly comparable to those of a civilian employee under the
1967 Act.
Withdrawing Concessions/ New Arguments on Appeal
24.
Where an appellant seeks to withdraw a concession made at the hearing
before the employment tribunal, this tribunal requires to bear in mind the
terms of the overriding objective (Employment Appeal Tribunal Rules 1993,
para.2) and consider whether it would, in all the circumstances, be in the
interests of justice to allow the withdrawal to be made. Similarly, where
either party seeks to advance an argument not advanced at the tribunal, the
test is, essentially, whether it would be just to allow the argument to be
advanced for the first time on appeal. That, we consider, is what, correctly,
lay at the heart of the oft quoted judgment of this Tribunal in the case of Kumchyk
v Derby City Council [1978] ICR 1116 where the appellant sought
to advance an argument that a certain term was implied into the contract of
employment which, for its consideration, would have required consideration of a
factual framework which had not been explored in evidence.
The Appeal
25.
Mr Campbell submitted that the Tribunal had erred in law in five
respects.
26.
First, they were quite wrong to proceed on the basis that the Claimant’s
employment did not involve him owing any duties to Strathclyde Police. The
statutory framework (to which we refer above) made it plain that he did.
Insofar as any concession had been made by the solicitor who appeared before
the Tribunal, to the effect that the Claimant was under no legal obligation to
assist the Police at all, he sought to withdraw the concession. It was
accepted that the 2003 Act did not involve any duty to disclose but that was
far removed from saying that the circumstances of his employment did not give
rise to any such duty. The very purpose of his employment was, in terms of
section 9(1) of the 1967 Act, to assist constables of the Strathclyde Police
Force.
27.
Secondly, given that the Claimant was in fact under an obligation to
assist the police, the Tribunal had plainly erred in law in determining that he
did not commit an act of misconduct. It was plain from the nature of his
conduct that he did so; reference was made to those terms of the SOP to which
we have referred above. Further, the Tribunal had, irrelevantly, taken account
of whether or not the Claimant’s conduct was unlawful and had, erroneously,
proceeded on the basis that there was no evidence of a serious breach of trust
and confidence when it was apparent from the terms of the letter dismissing the
Claimant that that was the case.
28.
Thirdly, the Tribunal had erred in substituting its own view as to
whether or not a reasonable employer would have dismissed. Mr Campbell
referred, in support of that submission, to Iceland Frozen Foods v Jones
[1983] ICR 17, Foley v The Post Office [2000] ICR 1283, and AEI
Cables Ltd v McLay. The task for the Tribunal was to ask what a
reasonable police authority or joint police board would, in the circumstances,
have decided (Ladbroke Racing Ltd v Arnott).
29.
Fourthly, the Tribunal had erred in holding that the Respondent ought to
have taken the Claimant’s previous service as a police constable into account.
Their approach failed to recognise that his employment with the Respondent had
only commenced in 2005. Further, there was no evidence before the Tribunal and
no findings in fact to the effect that DCS McAllister had any knowledge of
the Claimant’s prior service as a police constable. Even if there had been
such evidence, length of service was, in any event, but a factor which an
employer was entitled to take into account. He was not bound to do so: AEI
Cables Ltd; Strouthos v London Underground Ltd [2004] IRLR 636.
30.
Finally, the Tribunal had erred in failing to find that the Claimant had
contributed to his own dismissal. Their conclusion was based on their
erroneous view that he had no obligation to disclose information about his
brother to the police. It was plain that his own conduct was causative of his
dismissal.
31.
For the Claimant, Mr Crammond submitted first that the Respondent
should not be allowed to withdraw the concession to which we have referred and
should not be allowed to pursue their first ground of appeal regarding the Claimant’s
duties that were advanced under reference to the Police (Scotland) Act. He referred, in support of that submission to Kumchyk v Derby City Council.
32.
Regarding the first ground of appeal, Mr Crammond submitted that
s.9(2) of the Police (Scotland) Act did not form the basis of any duty between
the Claimant and the Chief Constable; insofar as it demonstrated the existence
of any duty, it was incumbent only on the Respondent and restricted to their
requiring to secure those matters set out in section 9(2). It did not
show that there was any duty owed by the Claimant to the police force or the
relevant chief constable. Further, the Claimant’s conduct was clearly conduct
outwith the workplace and not relevant to the employment relationship.
33.
Regarding the second ground of appeal, Mr Crammond submitted that
even if the Tribunal had erred in mis-stating the nature of the employment
relationship, it was clear from the SOP that the Claimant had not breached any
duty owed.
34.
Regarding the third ground of appeal, Mr Crammond submitted that
there was no substitution by the Tribunal of its own view. He referred, in
support of his submission, to the observations in case of Fuller v London Borough of Brent [2011] IRLR 414 that the reading of an employment tribunal
decision should not be so fussy that it produces pernickety critiques. He
submitted that, on the facts and evidence before it, the Tribunal was entitled
to find that no reasonable employer would have dismissed the Claimant.
35.
Regarding the fourth ground of appeal, Mr Crammond submitted that
the Tribunal did not err by taking account of the Claimant’s prior service as a
police constable and his unblemished record. If the Claimant owed a duty to
the Chief Constable as a civilian employee then it was entirely reasonable to
have regard to his police service when considering whether or not to dismiss
him. He referred, in support of his submission to the case of Strouthos
v London Underground Limited [2004] IRLR 636.
36.
Regarding the fifth ground of appeal, Mr Crammond submitted that
this Tribunal should be cautious before interfering with a decision on
contribution. Remedy was a sensitive matter and the Tribunal’s judgment should
be upheld. The Tribunal’s finding that they had no hesitation in concluding
that the Claimant did not contribute to his own dismissal was unequivocal and
should not be tampered with particularly in the light of the decision in Yate
v Foundry Limited v Walters [1984] ICR 445.
Discussion and Decision
Withdrawal of Concession/ New Argument
37.
We are readily satisfied that, in the circumstances, we should allow
withdrawal of the concession referred to and, also, allow the Respondent to
rely on the arguments advanced in support of the first ground of appeal.
Insofar as the other grounds of appeal flow from the first one, we also allow
them to be advanced. We are satisfied that, given the statutory basis for the
Respondent’s argument and given that matters can be fully addressed on the
facts found without the need for further evidence, there is no prejudice to the
Claimant. We have considered the authority relied on by Mr Crammond – Kumchyk
v Derby City Council - but the circumstances of that case were rather
different in respect that the proposed new line of argument would have involved
new factual investigations having to be made. The observations to the effect
that it would not usually be enough to show that the omission of the point was
due to lack of skill on the part of a legal representative or that it could
have been rectified by the employment tribunal itself were made in that context
and it would not be right to suggest that in all cases in which the omission is
due to one of those causes, it will always be just to refuse to grant the
application. Ultimately, the question has to be whether or not justice
requires that it be allowed and we are satisfied that, in the circumstances of
the present case, it does.
Duties owed by the claimant arising from his contract of
employment
38.
The Tribunal’s approach was blinkered. It was ill founded. They based
their conclusions on the fact that the Claimant’s employer, the Respondent, was
not the police force which had responsibility for locating and securing the
arrest of his brother. In so doing, they closed their eyes to the full width
of the nature and purpose of the Claimant’s employment and concluded that it
gave rise to no duties other than any owed directly to the Respondent, notwithstanding
that the whole purpose of it was to provide a service to the police force, in
circumstances where he was subject to the direction and control of its chief
constable. In so doing, they failed to have regard to the whole relevant
circumstances. Further, they failed to have regard to the relevant statutory
structure which is as we have explained it in the ‘Relevant Law’ section
above. Whilst we fully appreciate that the Tribunal was not referred to that
statutory structure, the relevance of the Police (Scotland) Act to
police service and associated employment is well known and we would, since they
apparently thought it of importance that the Claimant was not employed by the
police force, have expected them to ask to be addressed on it if not referred
to by parties’ representatives. The implication of their conclusion was that,
in discharging the role for which he was employed – providing assistance to
police constables - the Claimant owed no duties to anyone and it is unfortunate
that that obvious resultant anomaly did not cause them to make further enquiry.
39.
We reject entirely Mr Crammond’s submission that the relevant
statutory provisions somehow fall to be read as involving restricted duties
incumbent only on the Respondent and flowing only in a one way direction. As
we explain above, the Claimant’s employment circumstances plainly involved him
owing duties to Strathclyde Police for whose benefit he was employed, for whose
benefit he worked and in whose chief constable was vested the power to direct
and control him.
Reasonable Grounds for Belief in the Claimant’s Misconduct
40.
The Tribunal’s erroneous finding that the Claimant had no obligations to
Strathclyde Police under employment law formed the bedrock of their conclusion
that the Respondent did not have reasonable grounds on which to sustain their
belief that the Claimant had committed an act of misconduct. Whilst they also
based that conclusion on their view that the Claimant was not in breach of the
SOP, their consideration of his obligations in that regard was solely on the
basis that he owed no employment obligations to Strathclyde Police and for that
reason alone, their conclusion about the effect of the SOP is flawed.
41.
We are readily satisfied that the Claimant’s failure to disclose the
information about his brother and the circumstances of that non-disclosure
amounted to gross misconduct under the SOP. The tenor of paragraph 2.3 is
that civilian employees need to appreciate that there is a distinct and
important public interest element to their employment. It means that a high
standard of conduct is expected of them at all times and if their conduct could
in any respect be detrimental to the general discharge of duties (i.e. both
their particular duties and the duties of the relevant police force in general)
or to working relationships in general (i.e. not only between the police
authority and their civilian employees but also including working relationships
between those civilian employees and the police force for whose assistance they
are employed), then disciplinary procedures may ensue. Contrary to what seems
to be suggested in paragraph 31 of the Tribunal’s judgment, the ambit of
paragraph 2.3 of SOP is wide ranging and is not confined to acts or
omissions which are of themselves unlawful. Further, it does, again contrary
to what seems to be suggested by the Tribunal, extend to acts and omissions
outwith the workplace and outwith working hours, if they are liable to have any
of the detrimental effects identified. Appendix B to SOP clearly warns
civilian employees that any such conduct could lead to dismissal. In
particular, paragraph 17 puts them on notice that if they engage in such
conduct and it causes an irretrievable breakdown in trust and confidence, then
that could lead to dismissal.
42.
In this case, for a significant period, the Claimant withheld
information from the police service which he was employed to assist. That
information could have led to the earlier apprehension of a sex offender who
had absconded. The Claimant knew that that offender, his brother, had
absconded and he knew that the police were looking for him. It was a serious
matter. The duty of trust and confidence that was implied into his contract of
employment plainly involved a duty not to withhold relevant assistance from the
police service in such circumstances. The Respondent had employed him to
assist Strathclyde Police and was entitled to expect him to disclose to the
police the knowledge he had regarding an important and highly significant
police matter, namely his brother’s whereabouts. His actions plainly had a
detrimental effect on the police force’s discharge of its duties, his actions
failed to have regard to how the Respondent was entitled to expect him to
conduct himself in the matter and the nature of them was such as to entitle the
Respondent and the police force to lose all trust and confidence in him, thus
seriously damaging working relationships, which is what happened. We cannot
accept that what occurred did not give the respondent reasonable grounds for
their belief that the Claimant had committed gross misconduct. It is plain
that it did so.
The Decision to Dismiss
43.
Turning to the decision to dismiss, there appear to have been four
aspects to the reasoning leading to the Tribunal’s conclusion that dismissal
would not, in any event, have been within the range of reasonable responses:
(i) that the conduct occurred outwith the workplace and outwith working hours,
(ii) that the Claimant was not legally obliged to provide the information,
(iii) that the Claimant had had an exemplary long service as a police officer,
and (iv) the Claimant’s conduct was directed towards a third party. The first,
second and fourth of these are, for the reasons we have already explained,
irrelevant. Regarding the third matter, we begin by observing that the Tribunal
made no finding in fact and there was no evidence before them to the effect
that DCS McAllister or the Respondent knew anything about the Claimant’s
previous service as a police officer and no suggestion that it was relied on by
the Claimant in the disciplinary process, as relevant mitigation. For that
reason alone, the Tribunal fell into error; it was wrong to suggest that the Respondent
ought to have taken into account something of which, on the Tribunal’s
findings, they had no knowledge. Separately, in any event, we are persuaded
that Mr Campbell’s submission on this matter was well made. An employer
may, depending on the circumstances, be entitled or expected to have regard to
the record of an employee’s employment with him when considering whether or not
to dismiss (Strouthos v London Underground Limited) but
that is not to say that he is required to have regard to his employee’s prior
service as a statutory office holder, in this case as a police officer. The Tribunal
had no proper basis for their conclusion that reasonableness demanded it.
44.
We would add that we accept Mr Campbell’s submission that when
considering the objective test of reasonableness under s.98(4) a tribunal ought
to have in mind the question of how a reasonable police authority or joint
police board could, in all the circumstances, have responded. Ladbroke
Racing Limited v Arnott [1981] SC 176 is a useful example of that
approach. There is no indication that the Tribunal did so in this case. For
these reasons, we are satisfied that the Tribunal’s assessment of the decision
to dismiss as being unreasonable cannot stand. We would add that we consider
that there is some merit in the submission that the impression is that the Tribunal
have fallen into the substitution mindset but we do not require to make our
decision on that basis.
Contribution
45.
Separately, we should add that the Tribunal’s conclusion that the
Claimant did not contribute to his own dismissal is also flawed based as it is
on their erroneous view that he owed no obligation to the police. Had it been
open to them to find the dismissal unfair they would, we consider, have been
bound to find that the Claimant contributed to his dismissal but, in the event,
the question does not arise since we are satisfied that the Claimant’s
dismissal was entirely fair and the Tribunal had no basis in the evidence which
they accepted, for finding otherwise.
Disposal
46.
We will, for the above reasons, pronounce an order upholding the appeal,
finding that the Claimant’s dismissal was fair and dismissing the claim.
