Leonard v Scottish Prison Service

An employee must receive fair notice of the disciplinary allegations to be met. An employer cannot fairly dismiss for a different and more serious reason which was not fairly alerted. However, that principle does not assist where the tribunal’s unchallenged findings establish that the employee was dismissed for the notified misconduct.

In assessing fairness under Employment Rights Act 1996, the tribunal may find a dismissal reasonable where the employer dismissed for negligent failures to act during an incident, rather than for alleged prior planning or deliberate participation. A challenge founded on a characterisation contrary to the tribunal’s findings raises no relevant error of law.

The claimant, a prison officer, was dismissed for gross misconduct after another officer assaulted an inmate. The notified allegation was that the claimant had been negligent in failing to take appropriate action when the incident occurred. The employer found him guilty of failures to observe, intervene and report.

An Employment Tribunal rejected his unfair-dismissal claim. It found that he had not been dismissed for deliberate or premeditated conduct, but for negligent inaction once he became aware that something inappropriate was happening. The claimant appealed, contending that he had in substance been dismissed for a more serious, premeditated allegation of which he had received no fair notice.

1. Appeal dismissed. The appeal proceeded on a premise inconsistent with the Employment Tribunal’s unchallenged findings of fact. The Tribunal had found that the claimant was dismissed for negligent failures to act during the incident, which was the misconduct of which he had been notified, and not for deliberate or premeditated conduct.

2. The EAT accepted the general principle in Strouthos v London Underground Ltd [2004] IRLR 635 and Silman v ICTS (UK) Limited UKEAT/0630/05/LA. An employee is entitled to fair notice of disciplinary charges, and an employer cannot fairly dismiss for a reason of which the employee was never fairly alerted. That principle was inapplicable because the employer’s charge, findings and dismissal decision concerned failures to act, not an unnotified allegation of prior planning or conspiracy.

3. The Tribunal was entitled, on its findings and under section 98(4) of the Employment Rights Act 1996, to conclude that dismissal for gross misconduct was reasonable. The claimant had not challenged those findings as perverse, and his submissions did not identify a relevant question of law.

4. Silman was not inconsistent with Strouthos on the governing principle. The Tribunal’s reference to procedural flaws not necessarily being fatal was advanced only on an alternative basis. It was unnecessary because the Tribunal had already found that fair notice had been given and that the claimant had been found guilty only of the notified negligence.

• Employment Appeal Tribunal: Appeal dismissed. The Tribunal’s rejection of the unfair-dismissal claim was upheld.
• Employment Tribunal, Glasgow: The claimant’s unfair-dismissal claim was rejected; judgment registered on 22 February 2012.