EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 8000360/2025 Held in Edinburgh on 23, and June 2025 Employment Judge M A Macleod Mr Kenneth Aitken v Represented by: Mr C Harrington - Solicitor The Scottish Ministers Acting Through Their — 2025

The claimant, Mr K Aitken, was employed by the respondent from 4 February 1991 and worked for most of his career as a Residential Officer at HMP Shotts. The dismissal arose from an incident on 7 April 2024 involving prisoner IB, when Nurse Emily Higgins refused to administer medication because she suspected he was under the influence of drugs. The respondent investigated whether Mr Aitken failed to follow procedures, including the Management of an Offender at Risk (MORS) policy, and ultimately dismissed him summarily on 30 September 2024. The internal appeal was heard on 27 November 2024 and the dismissal was upheld on 3 December 2024.

The tribunal applied section 98 of the Employment Rights Act 1996, including the section 98(4) reasonableness test, and directed itself to Burchell and Iceland Frozen Foods. It also referred to Quadrant Catering on the burden of proof in misconduct cases. The tribunal held that the respondent had a genuine belief that Mr Aitken committed gross misconduct, that there were reasonable grounds for that belief, and that the investigation was reasonable. It rejected the claimant’s criticisms that the respondent should have obtained IB’s medical records or post mortem, commissioned an independent expert view on IB’s presentation, interviewed night shift staff, or treated the Finlay Begg email differently.

On the facts, the tribunal accepted that Nurse Higgins told Mr Aitken she had withheld IB’s medication because she suspected he had taken something, and that Mr Aitken was aware the medication had been withheld. It also accepted the respondent’s case that CCTV and witness evidence showed a change in IB’s presentation in the late afternoon, including signs such as staggering or stooping, and that Mr Aitken had sufficient information to consider MORS. The tribunal found that Mr Aitken’s account that IB was merely confused about why medication had been withheld was not accepted, and it held that the respondent was entitled to prefer Nurse Higgins’ evidence on the key issue.

The tribunal concluded that dismissal fell within the range of reasonable responses. It took into account the seriousness of the alleged failure to apply the MORS policy, the claimant’s experience and familiarity with that policy, and the respondent’s view that the omission was serious in a prison setting. The tribunal also rejected the argument that the claimant had been treated inconsistently with Officers Peden, Dunn and Bingham, holding that their circumstances were not truly parallel because Mr Aitken had the primary responsibility for IB at the hatch and had a direct conversation with Nurse Higgins. The claim was therefore dismissed.