Member: N Elliot Tribunal Member: W Muir Colin Hosie v Tayside Health Board — 2021

Colin Hosie worked for Tayside Health Board as a waste yard operative on a fixed-term contract that began on 18 May 2020 and was ultimately extended by four weeks to 15 December 2020. The claim originally included a holiday pay issue, but that was resolved by agreement and was not determined. The live issues for decision were detriment for non-payment of salary on 23 and 24 October 2020 and unfair dismissal arising from the non-renewal of the fixed-term contract.

On 23 October 2020 the claimant's wife was tested at Ninewells after an outbreak in ward 2, and the claimant believed the Scottish Government advice required him to stay at home while waiting for the result. The tribunal found there were circumstances of danger, that he reasonably believed them to be serious and imminent, and that belief remained reasonable despite changing advice from management during the day. It held that the respondent treated his absence on 23 October as unauthorised and unpaid because he refused to return to work while that danger persisted, so the section 44(1)(d) claim succeeded. The tribunal awarded £71.34, being one day's pay from the agreed two-day deduction of £142.68. The corresponding 24 October detriment claim was dismissed because the claimant accepted in evidence that he should not be paid for that day.

The unfair dismissal claim failed. The tribunal accepted that the respondent had not followed its fixed-term contract policy and that the handling of the claimant's contract was confused, but it found no evidence that the principal reason for the eventual non-renewal was that he refused to return to work on 23 October. It preferred the contemporaneous record of the claimant's meeting with management over the later challenge to it, and held that the burden of proving section 100(1)(d) was not discharged. Having made the section 44 award, the tribunal said it was unnecessary to decide the separate section 13 unlawful deduction issue.