Summing up by Penny’s counsel

EMPLOYMENT TRIBUNAL, SCOTLAND

SUBMISSIONS for CLAIMANT

In Case Nos: 110718/2008 and 109268/2009

Claimant – Ms Penny Gower

Respondent – Carnegie College

Introduction

There are two conjoined cases:

A In Case No: 110718/2008, the claimant seeks compensation for the detriment suffered by her when she was disciplined with the sole or main purpose of preventing or deterring her from taking part in the activities of her union, the Educational Institute of Scotland (“EIS”), at an appropriate time, or penalising her for doing so, contrary to s146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”) following what has become known as “the Glenochil incident” on 1^st October 2007.

B In Case No: 109268/2009 (which followed on from an application for interim relief under case no 108491/2009), the claimant seeks reinstatement following her unfair dismissal with effect from 1^st May 2009. The claimant maintains that her dismissal was unfair in three broad respects:

a)      She was dismissed, contrary to s. 152 of TULRCA, for the reason that she had taken part, or proposed to take part, in the activities of her union, the EIS, i.e. to conduct an inspection of the Carnegie College workplace at Cowdenbeath, or to conduct similar inspections in future, at an appropriate time, contrary to s. 152 of TULRCA, and was thus automatically unfairly dismissed;

b)      Alternatively she was dismissed, contrary to s.100(1)(b) of the Employment Rights Act 1996 (“ERA”), for the reason that, as the EIS Health & Safety Representative for  Carnegie College, she performed or proposed to perform functions as such a representative, i.e., to conduct an inspection of the Carnegie College workplace at Cowdenbeath, or to conduct similar inspections in future, and was thus automatically unfairly dismissed;

c)      Alternatively she was dismissed unfairly, contrary to s. 98(4) of ERA, in that the decision to dismiss her at the time when that decision was made was

1. i.      outwith the band of reasonable responses which a reasonable employer might have adopted in the circumstances; and, in any event,
2. ii.      the respondent failed to follow its own or any other reasonable procedure in reaching the decision to dismiss the claimant.

Issues

A         The Glenochil Incident

1. Why was the claimant disciplined following the Glenochil incident?
2. If for an unpermitted reason, what detriment did she suffer?
3. What amount is appropriate to compensate for that detriment?

B          The Dismissal

1. What was the reason, or the principal reason, for the dismissal?
2. Was that reason a breach of s.152 of TULRCA (Trade Union activities), a breach of s.100(1)(b) of ERA (Health & Safety), or straightforward unfair dismissal? Or a combination of these?
3. Did the claimant cause or contribute in any way to her dismissal?
4. Is it practicable for the respondent to comply with an order for re-instatement, or re-engagement?
5. What is an appropriate level of compensation to the claimant?

Evidence

Evidence was heard over 16 days. In the second section below, I make certain contentions about the conclusions to be drawn by the tribunal. In this first section below, I invite the tribunal to make certain findings in fact, many of which appear to be uncontentious between the parties. First, however, I invite the tribunal to consider all the witnesses who gave evidence as credible in what they said. All gave evidence to the best of their recollection. Some (in particular, I suggest, the principal, Mr McIntosh) were more vague than others in their evidence.

In my submission, however, particular attention should be paid to the evidence of Mr Laidlaw, Ms Brash, and the claimant, as being the best evidence of the Glenochil incident.

The evidence of Mr Bowstead and Mr Neilson, I suggest, provides the greatest insight into the meeting of senior management and members of the Board with their advisors on 31^st March.

The evidence of Bryony Innes, the Claimant, and Louise Wilson, I suggest, provides a clear picture of events at the dismissal hearing.

I reject any suggestion that the claimant’s evidence was other than honest, and accurate to the best of her ability. In my submission the criticisms made of her evidence are overstated. Similar criticism may be made of almost all the witnesses. For example, Mr Neilson and Mr Bowstead give evidence of the meeting on 31^st March which differs to some extent, but not such as to disturb the thread of similarity which runs through it. In my submission, the same view should be taken of the evidence of the claimant and all other witnesses.

For example, the suggestion that the claimant’s recollection of when she resolved not to go ahead with the Glenochil inspection is consistent with Ms Brash’s recollection. The witness whose evidence is inconsistent is Mr Thomas. His evidence can be explained by a lapse of memory – more likely in his case than in the case of the claimant or Ms Brash for both of whom the Glenochil incident was much more significant.

Against the background of those general comments, I turn to what I contend should be included among the tribunal’s findings in fact:

Proposed Findings in Fact

The claimant

1. The claimant was employed by the respondent with effect from 1^st April 2000.
2. Her employment terminated with effect from 1^st May 2009.
3. At date of termination of employment, the claimant’s net monthly salary was £812.70. (Tab 98)
4. She was employed as a part time lecturer within the respondents’ Prison Education Unit. This Unit provided education and learning facilities within special units at prison establishments at Edinburgh, Perth, Glenochil, and Cornton Vale. The claimant’s place of work was Saughton Prison, Edinburgh.
5. The respondent had no concerns about the claimant’s abilities or conduct in that teaching role.
6. Throughout her employment with the respondent, the claimant was also employed part time by Stevenson College as a lecturer in Health & Safety.
7. Throughout her employment with the respondent the claimant was an active member of the EIS. She held various roles within that Union, including membership of the National Executive, prior to 2007.
8. From about 19^th June 2000 until about 23^rd January 2009, the claimant was the EIS Health & Safety Representative for the Prisons Education Unit within Carnegie College, and was acknowledged by the respondents as such. (Tab 10)
9. Throughout the remainder of her employment, the claimant was the EIS Health & Safety Representative for the  whole of Carnegie College, and was acknowledged by the respondents as such. (Tab 53)
10. In each of these roles, the claimant carried out the functions of a safety representative as set out in the Safety Representatives and Safety Committees Regulations 1977 (“the 1977 Regs”)
11. In February 2008, the claimant became unfit to work at Saughton Prison due to depression and anxiety. She remained able to work at Stevenson College, and to attend disciplinary and grievance hearings. She returned to work in late January 2009.
12. Since termination of her employment, the claimant has sought other part time employment to take the place of her employment with the respondent, but without success.

The respondent

1. The respondent is a Further Education College based at Dunfermline. Until about 2008, it was known as Lauder College. It employs about 500 staff over a number of sites in East Central Scotland. Throughout the claimant’s employment with the respondent, the respondent’s staff were organised in ‘Schools’. During the period up until the end of 2007, the Prison Education Unit was part of the respondent’s School of Access and Communities. The Head of School was, until 2006/7, Julie Tindal.
2. The claimant’s line manager was Ian Henderson. Ian Henderson’s line manager was Martin Laidlaw, the Contract Manager for the respondent’s contract to supply education and learning to the Scottish Prison Service.
3. Mr Laidlaw was the respondent’s manager responsible for Health & Safety matters within the Prison Education Unit in 2007, the time of the Glenochil Incident.
4. In 2009, the Assistant Principal, David Neilson, was the respondent’s manager responsible for Health & Safety matters for the whole of the respondents’ business.
5. The Principal of the respondent College was, from late 2006 to date, Bill McIntosh.

The Glenochil Incident

1. On 18^th September 2007, the claimant sent a Memo to the Governor of HMP Glenochil, and 10 others. That memo set out: (a) that she had concerns about a health and safety issue at Glenochil, and (b) that she intended to carry out a general inspection of the Learning Centre there in 1^st October 2007. (Tab 28) Mr Laidlaw did not receive that until about 25^th September.
2. On 27^th September, Mr Laidlaw sent a memo to the claimant, and to Julie Tindal, advising the claimant that sending her memo directly to the Governor completely ignored the respondent’s health & safety protocols, was outwith the claimant’s authority, was something she had been requested not to do, and that because of that he was seeking advice on whether to take the matter to a disciplinary stage. In the meantime, he also instructed the claimant not to undertake her proposed inspection. (Tab 29)
3. The claimant received and read the memo while on the train to Glenochil.
4. She did not carry out the inspection, but she did meet staff and discuss with them health & safety issues over their lunchtime.
5. As it was happening, Ms Brash (the manager of the respondents’ Glenochil Learning Centre) reported to Mr Laidlaw that the meeting was going on.
6. He told her to have the claimant stop the meeting. The claimant refused, and refused to speak to Mr Laidlaw by phone.
7. As a result of this, Mr Laidlaw was irritated and annoyed. (Mr Laidlaw’s evidence in chief)
8. Some staff at the meeting were upset at being put in between the management and their union.
9. Mr Laidlaw encouraged them, if they were concerned about the matter, to write a memo of complaint.
10. He asked Donald McIvor, Personnel Manager, whether disciplinary action could be investigated.
11. Mr McIvor told him it could. He told Mr Laidlaw the offence would be refusing to comply with a management instruction and not complying with the respondents’ strategic approach of working together. (Mr Laidlaw’s evidence in chief)
12. On 3^rd October 2007, the claimant lodged a Grievance complaining of (a) lack of consultation over health & safety matters, (b) restriction in her health & safety representative role, and (c) being impeded in carrying out inspections, including the Glenochil incident, and threatened with disciplinary action. (Tab 32/1)
13. The Grievance was rejected at a meeting on 17^th December 2007 (Tab 32/3). Subsequent appeals did not affect this outcome except to the extent that it was considered steps could be taken to improve health & safety communications (Tab 32/9).
14. On 10^th December 2007,  the claimant was asked to attend a disciplinary hearing concerning 2 allegations –  (1) failure to comply with a management instruction; and (2) breach of the staff code of conduct. (Tab 31/14)
15. The first allegation was partially upheld, and the second allegation was upheld. The claimant received a formal written warning. (Tab 31/37). Subsequent appeals did not change this decision.

Events between the Glenochil Incident and the Dismissal

1. The claimant was first signed off work through illness with effect from 18^th February 2008. She consulted her GP with symptoms of depression and anxiety caused by “work stress” and “conflict”. (Tab 103, p.8)
2. She attributed this to a realisation that “management were determined to discipline her”.
3. A further contributing factor stemmed from her witnessing an incident of threatened violence between 2 prisoners at Saughton.
4. This condition prevented her from attending work at Saughton Prison. However, the claimant was able to continue working at Stevenson College, and to attend various disciplinary and grievance hearings, before she was eventually considered fit to return to work at Saughton in January 2009.
5. While off sick, the claimant lodged a second grievance dated 11^th June 2008, essentially repeating (but in greater detail) her complaint that she had suffered a detriment for carrying out her health & safety representative role. That grievance was upheld in part by Assistant Principal, Janet McAuslin, on 20^th June 2008. (Tab 33)
6. On 17^th November 2008, the Principal heard the claimant’s appeal against that decision. The claimant found the principal’s robust approach stressful.
7. Meanwhile there were tribunal proceedings. On 5^th August 2008, an ET1 in respect of the Glenochil incident was presented to the Employment Tribunal. (Tab 1) After a response was lodged on 4^th September 2008, the dispute was referred to mediation which concluded unsuccessfully on 23^rd March 2009. (Tab 5/3)
8. Tabs 51, 52, and 53 contain examples of comments by members of the management team which suggest a disparaging attitude toward the claimant.

Events after the claimant became fit to return to work in January 2009

1. On about 23^rd January 2009, the claimant was elected EIS Health & Safety Representative for the whole of the respondent College. (Tab 53)
2. She, her line manager, and Mr Neilson were all aware that she could not recommence teaching at Saughton Prison until she had completed training, eventually scheduled for end-April 2009. (Tab 61/2, Tab 68)
3. On 13^th February, the claimant gave notice of her intention to commence a general health & safety inspection of the College on 2^nd March. (Tab 58/1)
4. On 23^rd February 2009, the claimant met Mr Neilson to discuss the health & safety situation at the College. On 25^th February, he wrote to the claimant describing a failure to agree on what would amount to a reasonable time to carry out her role. He mentioned he had spoken to an officer of the Health & Safety Executive (David Stephen), and proposed that the claimant carry out her role for half a day per week, on Friday afternoons. (Tab 61)
5. The claimant sent a substantive reply by memo dated 3^rd March 2009. She raised objections to the proposed time to be allowed, and intimated that in the meantime she would resume the general inspection on Monday 9^th March. (Tab 63/2, and /5 and /6)
6. By letter dated 6^th March, Mr Neilson repeated his view that the claimant should carry out her role for half a day per week, and asked the claimant to teach a class on 9^th March. (Tab 64) (By this time, Mr Neilson had received an e-mail from Mr Stephen of HSE. (Tab 65/2) )
7. The claimant did not receive that letter until she arrived home after carrying out the inspection at Rosyth. (Tab 67/1)
8. By e-mail dated 9^th March, the claimant lodged a Grievance concerning the failure to agree that she should carry out the general inspection. (Tab 67/2)
9. On 14^th March, having met Mr Stephen, the claimant again sought to complete the general inspection. (Tab 69) Mr Neilson replied by letter dated 17^th March (because of difficulties with emails) to say Mr Stephen had now agreed that a half day per site per 3 months was not unreasonable, and to require the claimant to reschedule her next part of her inspection from Monday 30^th March to a Friday afternoon. (Tab 72) [Incidentally, the last paragraph of Tab 72/1 makes it clear, I suggest, that the respondent was fully aware that the claimant’s intimations of a general inspection included intimation of inspection of the premises at Cowdenbeath]
10. Bryony Innes (Head of HR and development) repeated that expectation by letter dated Wednesday 25^th March. ( Tab 75)
11. On 16^th March, the claimant’s memo of 14^th March (Tab 69 – see para 48) was copied by Bryony Innes to other managers with the comment, “She is right that we are finding her things to do until she returns to the prisons…” . (Tab 71)
12. By e-mail also dated 25^th March, (not having received the letter from Bryony Innes, but having received the letter from Mr Neilson) the Claimant repeated her intention to continue the inspection on Monday 30^th March. (Tab 76/1) Mr Neilson responded by email of 26^th March repeating that the inspection should take place on a Friday morning, and not on Monday 30^th March. (Tab 76/3)
13. On Friday 27^th March the claimant replied to Bryony Innes’ letter (tab 75 – see para 41) making clear that she would continue her inspection on Monday 30^th March. She set out reasons why she considered that reasonable. (Tab 78)
14. The claimant continued her inspection at Cowdenbeath on Monday 30^th March.
15. By letter dated Wednesday 1^st April, Bryony Innes replied to the claimant’s letter of 27^th March. She set out reasons why the respondent considered their position on time taken to carry out the claimant’s health & safety role was reasonable.(Tab 78 – see para 43)

The Dismissal

1. On 31^st March, there was a meeting attended by the principal, Mr Neilson, Ms Innes, some members of  the respondents’ Board of Management (including the Chairman, Mr Bowstead, but not including the local EIS representative, Mr Watt), and the college’s legal advisors.
2. The purpose of the meeting was to consider and seek legal advice on how to bring the situation with the claimant to a head.
3. The meeting had been arranged prior to the claimant’s inspection at Cowdenbeath. Nevertheless, the conclusion reached at that meeting was that disciplinary action should be taken against the claimant unless there was good reason why she had gone to Cowdenbeath the previous day. It was also resolved not to allow an appeal against a decision to dismiss her.
4. A Mike Holness had complained of the claimant’s visit on inspection without warning to him. A Marion Scott was asked by Bryony Innes to speak to him and obtain details of his complaint. There was no further investigation. There was no investigation into the reason why the claimant considered she should carry on with her inspection.
5. By letter dated 6^th April, the claimant was asked to attend a disciplinary hearing concerning allegations about her inspection at Cowdenbeath. The claimant was on holiday and did not return until late in April. At the request of her representative, the disciplinary hearing was postponed from Monday 27^th April until Friday 1^st May. (Tab 84, Tab 85)
6. The hearing lasted approx. 2 hours, including an adjournment. At the hearing, the claimant’s representative was not permitted to question  any witnesses. She was not permitted to complete her summing up. The Principal, who conducted the hearing, was only concerned to know whether the claimant had gone to Cowdenbeath to carry out an inspection or not. After a short adjournment, he advised the claimant that she was summarily dismissed. She was not permitted to appeal against that decision.

Proposed Conclusions from the facts

There is difference between the parties as to what to make of certain aspects of the evidence. As will be seen, this goes to the heart of the dispute in this case. The following areas are likely to be in dispute:

1. The reason why the claimant was disciplined following the Glenochil incident.
2. The reason why the claimant was dismissed.
3. The extent to which the illness which caused the claimant’s absence from work was caused by the respondents’ treatment of her.
4. The extent to which the claimant contributed to her dismissal.

I invite the tribunal to adopt the following conclusions:

1. The claimant’s approach to her role as EIS Health & Safety Representative for the Prisons Education Unit was such that she considered she had a right to inspect premises for Health & Safety purposes on giving reasonable notice to the parties involved. The respondent considered she should be required to obtain approval for such inspections through her managers, and not simply advise the parties concerned (including the prison governor) of her intention to inspect. The claimant was disciplined following the Glenochil incident because Mr Laidlaw wished to penalise her for carrying out her Health & Safety role as she considered appropriate.
2. The claimant was ultimately dismissed for a similar reason. She considered she should complete her general inspection of the respondent’s premises (a major undertaking) before she re-commenced her teaching role. She considered she was entitled to carry out such an inspection on giving notice to that effect. The respondent, on the other hand, considered she should only carry out that inspection at a time acceptable to them. The claimant was dismissed because she failed to abide by the respondent’s wishes in that respect.

1. The claimant’s illness was caused firstly by the respondents’ disciplinary proceedings against her. A secondary cause was the incident between prisoners in her presence.

1. The claimant contributed to her dismissal to the extent that she continued to maintain her right to inspect at a time she considered reasonable. She did nothing wrong or unreasonable in maintaining that right. She was not warned this was to be considered misconduct. She was not warned there was a danger that she may be dismissed as a consequence. The disciplinary proceedings came as a shock to her and to her union advisor, Louise Wilson. The respondents’ senior management team decided at a meeting on 31^st March that her employment should end if she did not comply with their view on the time to be taken in her Health & Safety role. From that point on, there was nothing she could have done to prevent her dismissal other than to comply with the respondents’ requirements that she carry out her role as they required.

Application of the relevant law

The Glenochil Incident

A number of principles are relevant to the circumstances of the Glenochil incident:

1. Trade union activities as described in section 146 of TULRCA must be construed in a broad and reasonable way. (Post Office v Union of Post Office Workers  & another [1974] IRLR 22)
2. The lunch period at work is ‘an appropriate time’ for the purposes of s. 146. (Post Office v Union of Post Office Workers & another [1974] IRLR 22)
3. Behaviour  forming part of a trade union activity which may be considered ‘frustrating’ or ‘annoying’ or ‘irritating’, provided it is not dishonest or in bad faith, does not remove the protection afforded by s. 146. (Bass Taverns Ltd v Burgess [1995] IRLR 596)

In light of these principles and the first conclusion I propose above, the respondent is in breach of s. 146. The claimant was disciplined for continuing with the meeting to discuss health & safety issues at Glenochil over the staff lunch break. That was a trade union activity at an appropriate time.

The claimant is entitled to  a remedy under s. 149 of TULRCA in respect of that breach.  The amount of compensation should take account of injury to feelings and psychiatric injury caused to the claimant as described in Dr Wyllie’s report. The considerations set out in Vento v Chief Constable of West Yorkshire Police (No 2) [2003] IRLR 102 are relevant. The circumstances of this case disclose chronic breach of the protection afforded by s. 146, and substantial injury to the claimant’s feelings, including causing her to become depressed. Dr Wyllie opined in evidence that the claimant’s injury was more severe than it might have been because of the value placed by her on her Health & Safety role. The injury to her by criticism of that role, and attempts to penalise her for carrying it out justifies an award in the medium to high band of compensation described in Vento.

Compensation in such circumstances also carries with it an element of penalty in the circumstances of breach of s. 146. (See Skiggs v South West Trains Ltd UKEAT/0763/03)

The Dismissal

What was the reason, or the principal reason, for the dismissal?

Whether this is considered as a dismissal contrary to s. 152 of TULRCA, or a dismissal contrary to s.100(1)(b) of ERA, or a dismissal contrary to s. 98(4) of ERA, the first task of the tribunal is to ascertain the reason, or the principal reason, for the dismissal.

Such an innocuous question contains, I suspect, the essence of the difference between the parties in this case. Dismissal contrary to s. 100 of ERA (for Health & Safety Reasons) is not the same as dismissal contrary to s. 98 of ERA.

The latter (or ‘ordinary’) type of protection against dismissal is an attempt to protect all employees from unfair treatment. Its purpose is general. There is no protection from discrimination of any kind.

The former, however, through Section 100 of  ERA, stems from the European Framework Directive on Health & Safety ( Directive 89/931/EC). Article 11 of that Directive contains provisions to prevent a trade union representative on health & safety, such as the claimant, from being placed at a disadvantage because of her activities. In other words, its purpose is to prevent discrimination against trade union representatives such as the claimant. (See Shillito v Van leer (UK) Ltd [1997] IRLR 495)

In keeping with that different purpose, the consideration of what is the reason for the dismissal must also be considered differently. Unlike dismissal under s. 98 of ERA, there is no requirement of unreasonableness for automatic unfair dismissal under s. 100. If the dismissal is for the reason that the claimant performed some function as a trade union health & safety representative, that is unfair dismissal.

With that explanation of the approach to the reason for dismissal, some assistance may be gleaned from the decision in the race discrimination case, Amnesty International v Ahmed [2009] IRLR 884, (see para 32). Where there is no requirement to consider ‘reasonableness’, asking what ‘the reason for’ an action such as dismissal (particularly when one is considering a discriminatory dismissal) is no different from seeking to ascertain the ground or grounds for the act complained of.

In the present case, the question of ‘the reason for’ the claimant’s dismissal falls to be considered not by asking whether the respondent has shown that the respondent in dismissing the claimant was not actuated by antipathy toward the claimant’s role, but rather by asking whether the claimant would have been dismissed had she not been seeking to carry out her health & safety role. The issue must be resolved with the purpose of preventing the claimant from being placed at a disadvantage because of her health & safety role.

I contend that, when looked at in that way, it is beyond dispute that the reason for her dismissal was that the claimant performed, or proposed to perform her function as a health & safety representative by continuing her inspection at Cowdenbeath.

Had she not done so, she would not have been dismissed.

In all these circumstances, I contend the claimant was automatically unfairly dismissed contrary to S. 100 of ERA.

I make no separate submission in respect of dismissal in breach of s. 152 of TULRCA. I observe, however, that although similar general considerations apply, they are not founded upon the Directive described above.

Unfair dismissal under s. 98

If the tribunal is not with me on that principal submission, it appears conceded by the respondent that the claimant was unfairly dismissed under s. 98 of ERA.

I say that such dismissal was not simply procedurally unsound, but was fundamentally unreasonable, contrary to s. 98(4).

As is plain, I contend,  from Regulation 5(1) of the 1977 Regulations, (Tab 100) the claimant was doing nothing wrong in seeking to exercise her right to inspect Cowdenbeath on a day suitable to her.

She was unable to carry out her contracted role as a teacher at Saughton Prison.

Regulation 5(1) sets out that “Safety representatives shall be entitled to inspect the workplace or a part of it if they have given the employer or his representative reasonable notice in writing of their intention to do so, and have not inspected it, or that part of it, as the case may be, in the previous three months….”

The claimant was not acting unreasonably in continuing with her inspection, in spite of the protestations of Mr Neilson. The Regulations gave her the right to do so. She sought to resolve the matter without a confrontation, but to no avail.

Throughout the discussions, and exchanges of memos, letters and emails, described under the heading “Events after the claimant became fit to return to work in January 2009”, the tone adopted by both the claimant and the respondent’s managers was one of negotiation. Each sought to persuade the other that their approach to the issue of when to complete the general inspection was reasonable. There was no strident tone from the claimant. There was no threat of disciplinary proceedings from the respondents’ managers.

However, it may be thought surprising that Mr Neilson, who had no teaching responsibilities, decided the claimant should teach on the day she sought to continue her inspection. The comment that “…we are just finding things for her to do.” May also be considered surprising.

In my submission, rather than the claimant acting unreasonably during that period, it was the respondents’ managers who were doing so. It was not necessary for the respondent to behave in this manner toward the claimant. They were clearly concerned to have her role carried out in a manner they considered appropriate. That, however, should have been a matter of negotiation, not imposition. The respondents had channels of communication with the EIS other than the claimant. They chose not to use them.

In all the circumstances, the claimant was not acting unreasonably in seeking to continue her inspection. The respondents may have found her behaviour ‘intense’ or ‘frustrating’ but it was not, in my contention, so unreasonable as to contribute at all to her dismissal.

In any event, I contend that the claimant was dismissed with complete and wilful disregard for any fair procedure. It was decided before she was asked to a disciplinary hearing that her employment should terminate if she had been at Cowdenbeath without a reason other than to inspect. The ‘investigation’ and the dismissal hearing were a complete sham. It had been decided in advance of the hearing that there would be no appeal. In my submission, this procedure was so flawed that this was not simply a matter of procedural irregularity. The dismissal was pre-determined. It was entirely contrary to natural justice. In these circumstances, no ‘Polkey’ reduction is appropriate. (See Software 2000 Ltd v Andrews & Others [2007] IRLR 568)

Remedy

In all these circumstances, I contend the claimant is entitled to a remedy for her unfair dismissal. She seeks re-instatement. There has, in my submission been no contribution to the dismissal by her. The evidence suggests it should be possible for her to return to her role as a teacher in Saughton Prison. Her line manager was not involved in this dispute. Her role has not, apparently, been filled. The respondent is a large organisation with professional senior managers. It should be possible for them to rise above any personal feelings of frustration they may have had and accept the claimant’s reinstatement to her role at Saughton Prison.

If the tribunal does not agree with this contention, then compensation falls to be awarded. In my submission there should be no reduction in compensation for the reasons set out above. Similarly, should it be accepted that dismissal was for health & safety reasons, an award of more than purely financial loss is appropriate. ( See Skiggs above)

The claimant has not found alternative employment. She is unlikely to do so in the short term. In the circumstances, and award of compensation for the period from termination of employment until October 2010 (start of a new academic session) is appropriate.

AUTHORITIES for CLAIMANT

In Case Nos: 110718/2008 and 109268/2009

Claimant – Ms Penny Gower

Respondent – Carnegie College

1. Post Office v Union of Post Office Workers  & another [1974] IRLR 22
2. Bass Taverns Ltd v Burgess [1995] IRLR 596
3. European Framework Directive on Health & Safety ( Directive 89/931/EC)
4. Vento v Chief Constable of West Yorkshire Police (No 2) [2003] IRLR 102
5. Skiggs v South West Trains Ltd UKEAT/0763/03
6. Software 2000 Ltd v Andrews & Others [2007] IRLR 568

Advertisement