Mr C Nicolson v Represented by: Ms J Poole, Ms C Green, and Mr G Jarrott –10 University of Strathclyde Law Clinic East Dunbartonshire Council — 2017

Mr C Nicolson was employed by East Dunbartonshire Council as a PCV Driver from 7 May 1996 until he was summarily dismissed on 7 June 2016 for gross misconduct. The allegation was that on 17 March 2016 he urinated in public and on school premises near Baldernock Primary School. The tribunal recorded his average weekly pay as £597, his average weekly take-home pay as £522, and that he later did some casual work for around £2,000 after dismissal.

The tribunal heard evidence from Ms Lenora Meier and Ms Jill Carr, who said they saw and then checked the wet wall area where the bus driver had been standing, and from Mr Paul Curran, who carried out the fact-finding investigation. It accepted that Mr Curran interviewed the relevant witnesses promptly, re-interviewed Ms Meier, obtained the claimant's account, and prepared a report for Mr Thomas Glen, who decided that disciplinary proceedings were appropriate. At the disciplinary hearing the claimant was represented, denied that he would have urinated there, and was later dismissed after Mr Glen concluded that the misconduct had been proved.

In deciding the unfair dismissal claim, the tribunal applied the statutory reasonableness test under section 98(4) ERA 1996 and the guidance in British Home Stores Ltd v Burchell. It found that Mr Glen genuinely believed the claimant had committed the misconduct, that there were reasonable grounds for that belief, and that the investigation was as thorough as was reasonable in the circumstances. It also accepted that the claimant had been informed of the allegation, represented throughout, given the report in advance, and offered an appeal. The tribunal held that dismissal fell within the band of reasonable responses and therefore found that he was not unfairly dismissed.