Case 1405994/2019 · Employment Tribunal
- MR J DUFFY ( COUNSEL) FOR THE v Respondent — 2020
- Case reference
- 1405994/2019
- Decision date
- 21 September 2020
- Jurisdiction
- England & Wales
Parties
1 namedClaimant
- MR J DUFFY ( COUNSEL) FOR THE
Respondent
- —
Key findings
Tribunal's reasoningThe claimant, a Prison Officer at HMP Guys Marsh, was dismissed for gross misconduct on 7 August 2019 after disciplinary proceedings arising from her sickness absence, a skiing holiday during that absence, and related statements about her health and leave. The tribunal accepted that she had a significant head injury and post-concussion symptoms in late 2018 and early 2019, and that she returned to work on phased and restricted duties supported by medical evidence, including Occupational Health and consultant neurology input.
The respondent investigated whether she had abused the sickness absence policy, acted disingenuously, and made false statements about her health. The tribunal found it was reasonably open to conclude from the photograph and surrounding evidence that she had been skiing on the holiday, but it held that the respondent could not, without more, conclude from that fact that she was fit for full duties or that allegation 1, abuse of sick leave, was proved. The tribunal said that conclusion would have required significant contrary medical evidence, which was not obtained.
By contrast, the tribunal held that allegation 2, unprofessional conduct, was rationally open on the evidence. Because it was reasonably open to find that she had skied, her persistent denials and other inaccurate accounts meant the decision-maker could conclude that she had been disingenuous and had failed to meet the standards of honesty and integrity expected of a Prison Officer. On that basis, the tribunal held that dismissal for allegation 2 alone fell within the range of reasonable responses.
Applying the Burchell questions and the range of reasonable responses test, the tribunal found the investigation thorough overall, with the only real criticism being the absence of further medical evidence before drawing conclusions about fitness for full duties. Nevertheless, because dismissal was fair and reasonable for allegation 2 standing alone, the unfair dismissal claim was dismissed.
Claims and outcomes
1 finding recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Unfair dismissal | The tribunal dismissed the unfair dismissal claim after finding dismissal fair for allegation 2 (unprofessional conduct) alone, even though it held allegation 1 (abuse of sick leave) was not rationally open on the medical evidence. | Dismissed | — | — |
Legal tests applied
2 references- Burchell questions
- range of reasonable responses test
Official outcome judgment PDF
Gov.uk primary recordThe official judgment PDF on gov.uk contains the tribunal's outcome, reasoning, and any remedy details. Where this page does not yet show extracted outcomes for every claim, use the PDF as the authoritative source.
Published on gov.uk under the Open Government Licence v3.0.
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