: F Paton J McCaig Mr M Andrew v Scottish Ministers, acting through their — 2024

The tribunal heard two linked unfair dismissal claims arising from the same incident on 18 August 2022, when both claimants, Prisoner Management Officers employed by the Scottish Prison Service, were involved in the use of force against Prisoner X. The respondent relied on gross misconduct. The tribunal noted that Prisoner X later displayed injuries shown in photographs taken on 22 August 2022, and that the initial Use of Force forms did not describe an incident that would explain injuries of that extent.

An investigation was carried out by Alan Strachan, who reviewed the CCTV, the Use of Force documentation, the violent incident review material, medical and nursing evidence, the prisoner's complaint, and interviews with the officers involved. Scott Watson then conducted the disciplinary hearings and decided, on the balance of probabilities, that it was more probable than not that each claimant had used a disproportionate level of force on 18 August 2022. In Fraser Kerr's case he also concluded that Kerr had failed in some of his responsibilities as Number 1. Both dismissals were upheld on appeal by the IDAB chaired by Melanie Bowie.

The tribunal applied section 98(4) ERA 1996, the Burchell approach to misconduct dismissal, and the band of reasonable responses test. It accepted that the respondent had a genuine belief based on reasonable grounds and that the investigation was reasonable in the circumstances, particularly because the claimants did not challenge the extent of the injuries during the internal process, did not ask for further investigation, and did not suggest any alternative explanation such as a propensity to bruise, intoxication, or a missing line of enquiry. The tribunal therefore dismissed both unfair dismissal claims.