Mr S Conway v Represented by:10 Mr J Wales - Lay Representative Advocate General for Scotland — 2023

Mr Conway was employed as an unarmed security guard at Faslane from 5 February 2018 until his dismissal on 29 June 2022 for ill health absence. The dispute that preceded his absence began when a suspension note recorded an allegation that concern had been raised that he had an anger management issue and that an MDP officer might be needed at the suspension meeting. He said the allegation was false and defamatory, raised a bullying and harassment complaint, and remained off work from 29 October 2020.

The tribunal accepted that the respondent’s grievance handling did not squarely resolve the claimant’s central concern because none of the grievance or complaint hearers spoke to Mr Sharkey, the line manager said to have supplied the alleged information. It also found that Mr Basham took too narrow an approach to the bullying and harassment complaint by treating it as a question of whether Ms Duff had made the remark, rather than addressing whether it had any basis. The tribunal nevertheless noted that the respondent offered mediation more than once, which the claimant declined.

On the dismissal claim, the tribunal found that the reason for dismissal was capability by reason of ill health and that this was a potentially fair reason under section 98 ERA 1996. Applying section 98(4), it held that Ms Malough had consulted the claimant, obtained an updated occupational health report, postponed the attendance hearing three times so that the grievance appeal could be completed, and offered alternatives such as phased return, reduced hours, and a different site. By 19 May 2022 the claimant had been off sick for around 18 months and had said he had lost all trust and confidence in the respondent; the tribunal found there was no real prospect of his return to work.

The tribunal referred to McAdie v Royal Bank of Scotland plc and East Lindsey District Council v Daubney in assessing whether the respondent had gone the extra mile in an ill-health dismissal case. It concluded that Ms Malough had done so and that, despite the unresolved grievance history, the dismissal on 19 May 2022 was within the range of reasonable responses. The unfair dismissal claim was therefore dismissed and no remedy was awarded.