Gross misconduct, negligence and unfair dismissal – Leonard v Scottish Prison Service

The facts in Leonard v Scottish Prison Service

Mr Leonard (“the Claimant”) was employed by the Scottish Prison Service (“the Respondent”) as a prison officer at Polmont Young Offenders’ Institution. On 7 June 2010 an incident occurred where an inmate was assaulted by another prison officer. The inmate complained of this prison officer’s conduct and the fact that although the Claimant had been situated in the hallway outside of the room where the assault occurred the Claimant had taken no steps to prevent the assault or report it. The Respondent conducted an investigation and concluded that although the Claimant’s behaviour was not pre-meditated it was sufficiently negligent to constitute gross misconduct. After a disciplinary hearing held on 1 February 2011 the Claimant was dismissed by letter on 16 February 2011.

The Claimant subsequently filed a complaint of unfair dismissal at the Employment Tribunal. The Employment Tribunal was held and its judgment registered on 22 February 2012. It concluded that the Respondent’s dismissal was because of the Claimant’s negligence in failing to undertake a series of required actions and was within the range of reasonable responses in the circumstances. Further, the fact that the Claimant had only been informed shortly prior to his disciplinary hearing of a number of the charges against him was not necessarily fatal to a finding of fair dismissal. The Claimant appealed on the grounds that the Respondent had erred in its application of Strouthos v London Underground Ltd, precedent for the principle that an employee should be given reasonable opportunity to respond to the charges against him (and that the employer should particularly not add in charges – especially those more serious in nature).

The law relating to gross misconduct, negligence and unfair dismissal

An employee with qualifying service has the right not to be unfairly dismissed under the Employment Rights Act 1996. To fairly dismiss an employee an employer must do two things:

1. Make a decision to dismiss that is within the range of reasonable responses in the circumstances; and
2. Conduct a fair procedure in deciding to dismiss the employee

If the employee’s conduct is sufficiently serious to breach their contract of employment then the employer may dismiss the employee for “gross misconduct”. If gross misconduct applies then the employer may terminate the contract of employment without notice. So, what can constitute gross misconduct? An act or a series of acts (if sufficiently serious) can be sufficient to justify a gross misconduct dismissal. Further, the conduct does not necessarily have to be an action on the part of the employee – it can equally be a failure to take a particular action. For example, if a nurse is supposed to undertake hourly rounds of her ward but falls asleep (and something happens to a patient in that time) then she has been negligent because of her failure to undertake a particular act. If this failure is particularly serious it can justify a finding of dismissal. However, as above, it must be sufficiently serious to justify dismissal and must be carried out in the correct manner.

The Employment Appeal Tribunal’s decision in Leonard v Scottish Prison Service

The Employment Appeal Tribunal rejected the Claimant’s appeal on the basis that it was misconceived. The EAT concluded that Strouthos v London Underground Ltd would apply if the reason for the dismissal was that the Claimant’s act was premeditated (as the Respondent had introduced fresh allegations of premeditation at a late date in the investigation). The Employment Tribunal had found that the actual reason for dismissal was the Claimant’s negligence, not the Claimant had acted in a premeditated fashion. The appeal was therefore misconceived and rejected.

Our specialist employment lawyers’ thoughts on Leonard v Scottish Prison Service

This case shows that if Respondents conduct relatively thorough and fair investigations that it is difficult for Claimants to succeed in claims of unfair dismissal, even if there are elements of unfairness in the process.

Redmans are specialist employment solicitors based in Richmond, London.