Case 4100315/2019 · Employment Tribunal
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TopCase 4100315/2019 · Employment Tribunal
ETZ 4(WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4100315/2019 Hearing at Edinburgh on 15, and May 2019, and by written submissions provided by June 2019 Employment Judge: M A Macleod Elaine McArthur
Elaine McArthur was dismissed by the Board of Management of Edinburgh College after an investigation into her working five agency shifts in February and March 2018 while still employed by the college and receiving pay from it. The disciplinary process also considered allegations about non-disclosure of NMC matters and an allegation that she had presented at work on 27 April 2018 while under the influence; those allegations were not upheld. Mr Pearson upheld the allegation that she had worked as a bank nurse on days when she should have been reporting for duty and dismissed her for gross misconduct.
The tribunal accepted that the respondent had a genuine belief in the misconduct allegation and reasonable grounds for that belief, and it found that the investigation was comprehensive and the procedure fair. It also accepted that the claimant understood the substance of the allegation against her, namely that she had worked elsewhere while employed by the college and receiving sick pay. However, the tribunal held that the dismissing officer went beyond the upheld allegation by treating the claimant's non-disclosure in relation to the earlier allegations as a pattern of withholding information, even though he had expressly found that those matters were not misconduct and that there was no obligation to disclose them.
The tribunal concluded that this reliance on irrelevant matters tainted the dismissal decision and made the dismissal unfair. It held that, had the decision been based only on the upheld allegation, dismissal would have fallen within the band of reasonable responses. On remedy, the tribunal found that the claimant's conduct was culpable and blameworthy and caused her dismissal, and it reduced any basic and compensatory award by 100% under sections 122(2) and 123(6) of the Employment Rights Act 1996, so no award was made.
| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Unfair dismissal | The tribunal found the dismissal unfair because the dismissing officer relied on an alleged pattern of withholding information drawn from allegations he had already found were not misconduct; however, it also held that the claimant's conduct under the upheld allegation amounted to gross misconduct. | Upheld | — | — |
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