Mr. Saul R. Tait v Highland Health Board — 2023

Mr Tait was a Band 5 Learning Disability Staff Nurse at Willows Ward. On the night shift of 6-7 May 2021, the tribunal found that he made remarks to colleague AD, who was a practicing Muslim, including references to Mohammed, voting, and citizenship. The tribunal accepted that the remarks in allegations #1-3 were crude, insensitive, and upsetting, and that Mr Tait should not have made them, but found he did not intend to violate AD's dignity or create a hostile environment. It also found that Mr Tait apologised after AD challenged him, and that the matter had initially been resolved between them during the shift.

The Board investigated the matter through Mr Thompson, then held a disciplinary hearing chaired by Mr Sell and an appeal heard by Ms Bussell. The tribunal accepted there were some defects in the process, including the disciplinary letter's failure clearly to separate factual allegations from misconduct allegations, and Mr Sell's reliance on conduct before 6 May 2021 when dismissing Mr Tait. It also accepted that Mr Thompson overstepped the mark at the disciplinary hearing by adopting an advocacy role, but found Mr Sell was not improperly influenced and that the appeal stage cured the defect about prior conduct by focusing only on the events of 6-7 May 2021.

The unfair dismissal claim failed because the tribunal found the Board genuinely believed Mr Tait had committed misconduct, had reasonable grounds for that belief, and conducted a reasonable investigation. Applying s.98(4) ERA 1996 and the Burchell line of authority, it held the dismissal fell within the range of reasonable responses. The tribunal said dismissal was not the only reasonable sanction and that a final written warning would also have been proportionate, but that did not make the actual dismissal unfair. It also found that Mr Tait's long service and clean disciplinary record were not given reasonable consideration, but that the overall dismissal remained fair.

The wrongful dismissal claim also failed. The tribunal held that the conduct in allegations #1-3 amounted to a repudiatory breach of the implied term of trust and confidence, and that the Board was entitled to summarily dismiss Mr Tait without notice or payment in lieu of notice. It said allegation #4, viewed alone, would not have reached that threshold. In reaching that conclusion it also observed that the conduct amounted to harassment related to religion under s.26 of the Equality Act 2010.