Mr Michael Phillips The State Hospital Board for Scotland v Represented by: Mr P Deans - Solicitor — 2019

The claimant, a Nursing Assistant at the State Hospital, Carstairs, complained that he was unfairly dismissed on 7 December 2018 following an investigation into an incident on 6 March 2018 in which patient A was said to have assaulted patient B in the Iona 2 dayroom. The respondent said the dismissal was for misconduct. The tribunal accepted that misconduct was the potentially fair reason for dismissal under section 98 of the Employment Rights Act 1996.

The tribunal held that the investigation carried out by Ms Totten was reasonable in the circumstances. It noted that she interviewed patients A, B and C, a number of staff members, and the claimant, and that she had sought clinical guidance on how to take statements from the patients. Although the claimant criticised the investigation as predetermined and said that patients D and E should also have been interviewed, the tribunal found that the investigation was not unreasonable and that the claimant had been given sufficient notice of the case against him and an opportunity to respond.

At the disciplinary hearing, the panel heard from Ms McDougall and SCN McFarlane and considered the written and oral evidence. It accepted Ms McDougall as a credible and reliable witness, including her account that she saw and heard the assault and that the claimant did nothing in response. The panel concluded that the claimant was present, was aware of the incident, and failed to take action, which it treated as gross misconduct. The appeal panel later upheld the dismissal on 5 February 2019.

The tribunal applied section 98 ERA 1996, the Burchell test, and the band of reasonable responses approach. It concluded that the respondent had reasonable grounds for its belief, had carried out as much investigation as was reasonable, and that summary dismissal fell within the range of reasonable responses. The tribunal therefore dismissed the unfair dismissal claim and did not go on to determine remedy.