Mr G McIrvine v Represented by:15 Mr Jay Lawson Solicitor Scottish Police Authority — 2021

Mr G McIrvine had been employed by the Scottish Police Authority since 1986 and had been on full-time secondment to Unison since around January or February 2010 as Branch Secretary and Labour Link Officer. The disciplinary process arose from timesheet entries recording attendance at union and related events, together with an allegation that he undertook paid work for Cornerstone while on sick leave. He was summarily dismissed for gross misconduct on 29 May 2019, and his appeal was not upheld on 28 September 2020.

Applying section 98 of the ERA 1996 and the Burchell approach, the tribunal accepted that the respondent believed the claimant had committed misconduct, but held that it did not have reasonable grounds for that belief in relation to allegations (a) to (e), which centred on alleged falsification of facility-time claims and breach of the Recognition and Procedural Agreement. The tribunal found that the respondent knew the claimant was a full-time secondee to Unison, did not know the duties of his seconded roles, and had not given him a job description, guidance, or direction. It held that the relevant RPA provisions were aimed at employees seeking time off from normal duties, not a full-time secondee already working under secondment, and that the claimant’s timesheets were an account of his activities rather than false claims for payment.

The tribunal also found the investigation deficient because Mr Scott did not personally hear from the three branch witnesses whose evidence was relied on against the claimant, did not compare the claimant’s timesheets with those of other secondees, and did not obtain JNCC minutes or sufficiently investigate the claimant’s evidence that he had attended similar events without prior authorisation since 2010. By contrast, the tribunal accepted that the respondent did have reasonable grounds to believe the claimant had committed misconduct in relation to the Cornerstone secondary-employment allegation while on sick leave. It also held that the delay in the appeal process was not unreasonable in the circumstances, given the formation and training of a new appeal committee and the later impact of the pandemic.

Looking at sanction, the tribunal held that no reasonable employer would have dismissed in the circumstances of this case and that dismissal was outside the band of reasonable responses. It accepted that the secondary-employment conduct contributed to the dismissal but found that this conduct alone would not have justified dismissal, and it reduced both the basic and compensatory awards by 25% for contributory conduct. The parties had agreed the pre-deduction loss figures and the tribunal rejected the respondent’s mitigation argument, finding that the claimant had acted reasonably in the circumstances. The final awards were a basic award of £9,646.87 and a compensatory award of £12,424.34, making a total award of £22,071.21.