Mr James H Cunningham v The Scottish Ministers — 2019

The claimant was dismissed for gross misconduct after a prisoner escaped during an emergency escort from HMP & YOI Grampian. The respondent relied on conduct as the reason for dismissal, and the claimant accepted that the Burchell elements concerning belief, reasonable grounds and investigation were met. The live issue was whether dismissal was within the band of reasonable responses, particularly given the claimant's argument that he had been treated inconsistently when compared with the Control Manager on the preceding shift.

The tribunal found that the respondent's decision-makers considered the claimant's long unblemished service, his admissions about responsibility for the escort departure, and the roles of others involved. The respondent distinguished the claimant from the Control Manager because the claimant was the First Line Manager in charge when the escort was approved and dispatched, and had not checked the paperwork, ensured staff were briefed, or applied a risk assessment approach including consideration of double-cuffing.

The tribunal held that the claimant and the Control Manager were not in truly parallel circumstances and that there was a clear rationale for the different treatment. Given the respondent's custodial responsibilities and the importance of secure custody, the tribunal concluded that dismissal for the admitted failure to follow relevant SOPs was within the band of reasonable responses. The unfair dismissal claim was therefore dismissed.