Mr AR Neill v The Secretary of State for Justice — 2019

The claimant, a prison officer, was dismissed after an incident in which he delivered a single knee strike to a prisoner's upper arm during a restraint. The tribunal found that the respondent had carried out a reasonable investigation and disciplinary process, and that it had reasonable grounds to conclude that the claimant's use of force was inappropriate misconduct.

The tribunal found, however, that dismissal was outside the band of reasonable responses. It relied on the circumstances of the incident, including the prisoner's history and threats, the claimant's safety-based intention, the fact that there was one targeted strike, no injury, and the claimant's indication after expert evidence that he would not act the same way again. The tribunal considered that the respondent had not reasonably appreciated the claimant's position and insight when deciding sanction.

The tribunal held that the claimant's conduct had contributed significantly to his dismissal. It found that he acted outside use-of-force policies, used excessive and unreasonable force, failed to report the knee strike properly on the Use of Force form, and gave an account that was not entirely consistent. It reduced any basic and compensatory unfair dismissal award by 75%. It also held that, although the claimant was guilty of misconduct, the circumstances did not amount to a repudiatory breach justifying summary dismissal, so the breach of contract claim succeeded.