Strathclyde Joint Police Board v Cusick

A civilian employee of a Scottish police authority may owe duties to the police force whose constables he is employed to assist, even though he is not employed by the force. The statutory employment structure and the nature of the role are relevant to identifying those duties.

For misconduct dismissals, the Burchell test concerns the employer’s genuine belief, reasonable grounds and reasonable investigation. Conduct need not be unlawful, occur at work or take place during working hours to constitute misconduct under applicable disciplinary rules. Under Employment Rights Act 1996, s.98(4), the tribunal must assess the response of a reasonable employer in the relevant business, without substituting its own view.

The Claimant was a civilian police training officer employed by Strathclyde Joint Police Board. He had withheld information about the whereabouts of his twin brother, a registered sex offender who had absconded while subject to a warrant for arrest. Following disciplinary proceedings, he was summarily dismissed for gross misconduct.

The Employment Tribunal held that the dismissal was unfair. It considered that the Claimant owed no employment duty to Strathclyde Police, that the Respondent lacked reasonable grounds for its belief in misconduct, and that dismissal was outside the range of reasonable responses. The Respondent appealed, including on the basis that it should be permitted to withdraw a concession and advance a new statutory argument.

1. Appeal upheld. The Employment Appeal Tribunal allowed the Respondent to withdraw the concession and pursue the new argument. The interests of justice favoured permission because the statutory issue could be determined on the facts already found and caused no prejudice. Kumchyk v Derby City Council was distinguishable because the proposed argument there required further factual investigation.
2. Under s.9(1) of the Police (Scotland) Act 1967, civilian employees of a police authority are employed to assist the constables of the relevant police force. Sections 9(2) and 9(4) place them under the direction and control of the chief constable, including control over engagement and dismissal. The Claimant therefore owed duties to Strathclyde Police, notwithstanding that his employer was the police authority.
3. The Claimant’s prolonged withholding of information which could have assisted the arrest of an absconded sex offender amounted to gross misconduct under the disciplinary procedures. The rules imposed a high standard of conduct and extended to conduct outside the workplace and working hours where it could damage the discharge of police duties or working relationships. Unlawfulness was not a necessary condition.
4. The Respondent had reasonable grounds for its belief in misconduct under the second limb of the Burchell test. The Employment Tribunal’s contrary conclusion rested on its erroneous view that the Claimant owed no duty to the police.
5. In applying s.98(4) of the Employment Rights Act 1996, the tribunal had to consider how a reasonable police authority or joint police board could have responded. The Tribunal wrongly treated the out-of-work conduct, absence of a statutory disclosure obligation and third-party nature of the conduct as decisive. It also wrongly assumed that the Respondent should have considered prior service as a police officer when there was no finding that the disciplinary decision-maker knew of it. The dismissal was within the range of reasonable responses.
6. The Tribunal’s finding on contribution was also flawed, but the issue did not arise because the dismissal was fair. The Tribunal’s decision was set aside, the dismissal was held fair and the claim was dismissed.

1. Employment Appeal Tribunal: The appeal from the Employment Tribunal sitting at Glasgow was upheld. The finding of unfair dismissal was set aside, the dismissal was held fair and the claim was dismissed.
2. Employment Tribunal: The Tribunal had found the dismissal unfair, ordered reinstatement and restoration of pension rights, and awarded compensation of £26,649.