Member G McKay Tribunal Member J Ward Ms C McCulloch v Represented by Mr K Gibson Advocate The City of Edinburgh Council — 2022

The claimant was a senior social worker/team leader for the respondent. The dispute arose from her unilateral decision in July 2018 to change Child A and Child B’s child plans after a Children’s Hearing, and from later concerns raised about her access to records and communications with colleagues and a school in February 2019. She was suspended on 12 February 2019, investigated, disciplined and ultimately summarily dismissed by letter dated 12 December 2019. The tribunal recorded that the hearing was liability only and remedy was reserved.

The tribunal held that four disclosures were protected disclosures under ss43A-43C ERA 1996: the meeting with JS on 21 August 2018, the stress risk assessment and return-to-work discussion with AM in January 2019, the call to Safecall on or around 5 February 2019, and the Safecall interview on or around 21 February 2019. In each case, the claimant reasonably believed she was raising matters in the public interest and that the respondent was breaching legal obligations and putting children’s health and safety at risk.

The detriment claim failed because the tribunal found that none of the alleged detriments was done on the ground that the claimant had made protected disclosures. It found that the relevant decision-makers were not aware of the disclosures when they acted, and that the suspension, investigation, disciplinary process, and later delay in the outcome were driven by concerns about the claimant’s conduct. The tribunal also rejected the alleged detriment said to arise from receiving the dismissal letter by email on public transport, finding that account was not established on the evidence.

On dismissal, the tribunal accepted that conduct was the reason for dismissal and therefore a potentially fair reason under s98(2)(b) ERA 1996. Applying the Burchell approach and s98(4) ERA 1996, it found that SD genuinely believed the claimant had committed misconduct, had reasonable grounds for that belief, and carried out a reasonable investigation. The tribunal held the procedure was fair overall. It did find that classifying allegation 4 as gross misconduct was outside the band of reasonable responses, but concluded that the remaining established allegations, taken together, were sufficiently serious that summary dismissal still fell within the range of reasonable responses. All claims were dismissed.