Ms Yvonne Welsh South Lanarkshire Council v Counsel — 2022

The claimant, a residential care worker employed since 2005, was dismissed after a November 2020 allegation involving a service user, a police charge on 1 December 2020, and a failure to notify the Scottish Social Services Council of that charge. The respondents relied on gross misconduct. At the end of the evidence, the tribunal refused the respondent's late application to add some other substantial reason as an alternative basis for dismissal because it went beyond the pleaded case and would have prejudiced the claimant.

On unfair dismissal, the tribunal accepted that Ms McCrea genuinely believed the claimant was guilty of the matters underlying the charges and that conduct was a potentially fair reason for dismissal. It also found that, in practice, the dismissal decision treated the upheld charges cumulatively and that Ms McCrea had not considered any sanction other than dismissal. The tribunal nevertheless held that the dismissal was unfair under section 98(4) ERA 1996. It found that the failure to notify the SSSC was a matter the claimant had not reported, but that the temporary suspension order imposed by the SSSC was not conduct by the claimant; charges 5 and 6 duplicated charges 3 and 4; and it was unreasonable to rely on an unspecified 'something significant' after charges 1 and 2 were not upheld.

The tribunal added that, even if the dismissal were assessed only by reference to the failure to notify the SSSC, dismissal would still fall outside the band of reasonable responses because the claimant had been distressed, believed management would notify the regulator as it had done in 2015, and the respondents were aware of her length of service and distress. The claimant's breach of contract claim succeeded because the tribunal did not regard the failure to notify the SSSC, in those circumstances, as a repudiatory breach that destroyed the trust and confidence in the employment contract. Remedy was not determined at this hearing; a remedy hearing was to be fixed and the claimant was directed to lodge a schedule of loss within 21 days.