Member I Ashraf Tribunal Member F Parr Mr M Harvie v Represented by: Mr G Robinson, Lay Representative Scottish Ambulance Service Board — 2023

Mark Harvie was employed by the Scottish Ambulance Service Board as an Urgent Tier Ambulance Care Assistant. The claims arose from an incident on 25 January 2022 at Raigmore Hospital, Inverness, when a drunk and abusive member of the public forced open the ambulance door, threatened the claimant, and the claimant struck him. The respondent suspended the claimant on 26 January 2022, investigated the matter, and dismissed him summarily on 22 July 2022 for gross misconduct and bringing the service into disrepute.

On the unfair dismissal claim, the tribunal accepted that the reason for dismissal was conduct, but held that the dismissal was unfair under s.98(4) ERA 1996. It found that the investigation and disciplinary process were not full and fair: the investigation report was not balanced, the respondent treated the police charge as pointing towards guilt, CCTV evidence had not been obtained, and the hearing should have been deferred for a short period until the criminal proceedings and CCTV position became clearer. The decision-maker also applied too narrow a view of self-defence and did not ask the right questions about perceived threat, necessity, and proportionality.

The tribunal concluded that, on the facts known at the time, the claimant had acted in self-defence, or at least that no reasonable employer could have treated the incident as gross misconduct warranting dismissal. In reaching that view it relied on the claimant's genuine fear, the abusive and threatening conduct of the other man, the limited force used in the strike, the claimant's 29 years of unblemished service, and the limited training evidence before the tribunal. It nevertheless made a 20% deduction for contributory conduct because of the claimant's initial remarks, swearing, failure to alert security, and failure to report immediately, and a further 25% reduction because he did not pursue his appeal.

For disability discrimination, the claimant's dyslexia was admitted and the tribunal found that the respondent knew or ought reasonably to have known of it from September 2008. The Conduct Policy and the practice of referring material to Police Scotland were PCPs. The tribunal found that the claimant was at a substantial disadvantage in dealing with the written investigation material and formal process, and that the respondent should reasonably have deferred completion of the disciplinary hearing for about a month so that the criminal proceedings and CCTV position could be clarified. It did not accept that allowing a solicitor to attend, obtaining an occupational health report, or changing the number of panel members were reasonable adjustments on the evidence.

The breach of contract claim succeeded because the respondent had not proved a repudiatory breach entitling it to summarily dismiss without notice. The tribunal awarded notice pay and related pension loss, then applied a 25% reduction for the failure to pursue the appeal. The final awards were £5,010.52 basic award, £11,493.16 compensatory award, £1,712.00 for injury to feelings, and a total of £22,468.35. The reasons section also assessed discrimination injury to feelings at £2,000 and interest at £140 before the final deductions.