Mr F Petrie v ,15 Solicitor Scottish Fire and Rescue Service — 2022

Mr Petrie was employed by the Scottish Fire and Rescue Service from July 2003 and was dismissed on 24 July 2020. The tribunal found that in October 2017 he suffered a panic attack while wearing breathing apparatus at an incident, after which he was removed from operational duties and placed on modified duties. Occupational health reports recorded concerns including anxiety, sinus and breathing problems, and later cocaine use, and the respondent managed his position through its Attendance Management Policy and then the capability process.

The tribunal accepted that the respondent gave the claimant a series of opportunities to return to operational duties. After a disciplinary hearing in April 2018 he was demoted from Crew Manager to firefighter, then in July 2019 Mr Lockhart decided not to dismiss him and instead left stage 3 of the capability process live for 12 months on the basis that he had returned to operational duties but had to avoid hitting attendance triggers. The tribunal found that the claimant then had further short-term absences in late 2019 and 2020, which met the respondent's absence triggers under the policy.

In determining fairness, the tribunal treated the dismissal as properly characterised as dismissal for some other substantial reason, rather than strictly capability, because Mr Gourlay's decision was driven by the operation of the attendance policy and a loss of confidence that the claimant would maintain acceptable attendance. It referred to Wilson v Post Office, Ridge v HM Land Registry and Kelly v Royal Mail Group Limited, and held that the respondent had acted within the range of reasonable responses. The tribunal also said that, if it were wrong about the primary reason, the claimant could fairly have been dismissed for capability in any event.

The tribunal rejected the claimant's criticisms that certain absences should not have been counted and did not accept that the December 2019 and March 2020 absences should be disregarded as COVID-related. It found that the respondent had applied its policy fairly and properly, had considered redeployment and ill health retirement, and had given the claimant substantial support over a lengthy period. The claim was dismissed in full and no remedy was awarded.