Mr John McKechnie v , Advocate M&D Green Dispensing Pharmacist Ltd — 2020

Mr McKechnie was employed as a pharmacist from 4 January 1984 until summary dismissal effective 25 September 2019. The dismissal letter relied on two allegations: that over a period of three years he had failed to disclose information required by his employment and professional obligations which may have affected patient safety at Fore Street Pharmacy, and that statements he made on 11 and 30 July 2019 about evidence of malpractice may have been made maliciously, for personal gain, or otherwise in bad faith. The claimant withdrew his breach of contract claim during the hearing, leaving the unfair dismissal claim for determination.

The tribunal found the respondent’s investigation to be thorough and accepted that Ms Louise Carson sincerely believed the claimant was guilty of the misconduct complained of. It relied on the evidence before her, including the claimant’s admissions in the investigation, grievance and disciplinary process that there had been unrecorded errors, that he had "lots of evidence of malpractice over the past 3 years", and that he should have raised David Reilly’s failure to record errors. The tribunal also found that the claimant repeatedly described the pharmacy as unsafe and that he knew both the General Pharmaceutical Council standards and the respondent’s standard operating procedures.

Applying section 98 ERA 1996, the Burchell approach, and the band of reasonable responses test discussed in Iceland Frozen Foods and Graham, the tribunal held that Ms Carson had reasonable grounds for her belief and that categorising the conduct as gross misconduct fell within the range of reasonable responses open to the respondent. It accepted that the claimant’s length of service, previous clean disciplinary record, and the absence of a warning were taken into account, but concluded that the dismissal was still fair in all the circumstances. The unfair dismissal claim was therefore dismissed, and there was no compensation award.