Employment Tribunal in Scotland Rules in Favour of Prison Officers: Key Takeaways

In Mr B McTague, Mr S Milne, and Mr K O’Hara v The Scottish Ministers, the employment tribunal in Scotland has ruled that three prison officers were unfairly dismissed, following an investigation filled with shortcomings. While all three subsequently received compensation, Mr McTague and Mr O’Hara were also reinstated in their roles.

Read on as we discuss what happened and the reasoning behind the tribunal’s judgment. We take a closer look at unfair dismissal under UK law and examine one’s options if they’re dismissed unfairly.

If you’ve faced something similar and want to claim unfair dismissal compensation, contact Redmans Solicitors today. Our team of employment specialists is here to assist. Following a brief chat to understand your case, we can answer your questions and provide expert advice.

To get started and learn more about how we can help you, simply:

• Give us a call on 020 3397 3603
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The Facts in Mr B McTague, Mr S Milne, and Mr K O’Hara v The Scottish Ministers

Mr B McTague (“the First Claimant”), Mr S Milne (“the Second Claimant”), and Mr K O’Hara (“the Third Claimant”) all worked as residential prison officers at HMP Edinburgh. They had a combined 36 years of service, with a clean disciplinary record.

Alleged Prisoner Assault Leads to Claim in the Employment Tribunal in Scotland

Issues began following an incident on 6 September 2022, when a “physical altercation” broke out between two prisoners. The emergency alarm was sounded, and the three Claimants attended to address it. Unfortunately, a prisoner not involved in the altercation, referred only to during proceedings as “B,” shouted a racial slur at the Second Claimant about his South African descent.

Once the altercation had been addressed, the Claimants went to B’s cell to discuss what had happened. However, after B maintained his “aggressive manner,” the Second Claimant left the cell.

B subsequently made a report that several officers, including the Claimants, had assaulted him. On 7 September, he then went further, telling his clinical psychologist that one of the Claimants had called him a “Beast,” and that while one of them pinned him down, the other two “repeatedly punched him in the head.”

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This led to an investigation, during which the Claimants were suspended by a letter dated 12 September. They were informed that the matter concerned potential gross misconduct in relation to “inappropriate force” against prisoner B, not reporting said use of force, and alleged criminal assault. The letter also outlined that the investigation should be concluded by 28 November.

The outcome of the investigation was then provided on 12 December, concluding that the Claimants had “a case to answer.” Each was subsequently required to attend a disciplinary hearing scheduled for 23 January 2023, which resulted in their summary dismissals. This was confirmed in writing in a letter dated 31 January.

The Claimants subsequently appealed their dismissals, but these ultimately proved unsuccessful. Accordingly, the three brought unfair claims in the employment tribunal in Scotland, which were initially raised in June 2023.

The Employment Tribunal’s Judgment

The employment tribunal in Scotland noted that the reason for the Claimants’ dismissals was conduct, a potentially fair reason. That being said, it went on to highlight several shortfalls in the Respondent’s investigation.

For instance, when witness statements were collected, signatures weren’t provided, despite this being a key element of the Respondent’s policy. The tribunal emphasised the importance of this, particularly since prisoner B appeared to have made various inconsistent statements. Sometimes he claimed that six officers were present during the assault, while at other times he stated there were four.

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Building on this, the tribunal found that while the Respondent’s investigation was “extensive,” it wasn’t “comprehensive.” Had it been, the tribunal believed prisoner B’s statement wouldn’t have been taken at face value. More time would have been given to determine the accuracy of his statements and consider the alternative version of events provided by the Claimants, which only appeared “very late” in the investigation report.

Additionally, the CCTV footage, which was heavily relied on, didn’t appear to provide clear evidence of the alleged assault. And after prisoner B was moved to a different cell, his former cellmate, prisoner “C,” retracted his statement before claiming that prisoner B had harmed himself to make it look like the Claimants had assaulted him; this was never considered by the Respondent, though.

Unfair Dismissal Compensation Awarded

Taking all evidence into account, the employment tribunal in Scotland ruled that the Respondent hadn’t undertaken a fair investigation, meaning dismissal wasn’t within the band of reasonable responses. Consequently, it upheld the Claimants’ unfair dismissal claims, reinstating the First Claimant and awarding him £24,061 in compensation, awarding the Second Claimant £29,748.36 in compensation, and reinstating the Third Claimant and awarding him £20,159.54 in compensation.

UK Employment Law: Unfair Dismissal

Under the Equality Act 2010, employees with two years of continuous service with their employer are protected against ordinary unfair dismissal. This means that such individuals cannot be dismissed, unless there’s a “fair reason” for dismissal and a “fair procedure” has been followed.

Fair reasons for dismissal can include conduct issues, capability concerns, redundancy, statutory restrictions, or a “Some Other Substantial Reason” (SOSR). For the procedure to be fair, it should be, among other things, impartial, comprehensive, and in line with the Acas Code of Practice. Where one or both of these elements aren’t satisfied, an ordinary unfair dismissal claim could arise.

Notably, even if an employee lacks the required two years of service, a dismissal for whistleblowing or pregnancy, for example, would be considered “automatically unfair.” In such scenarios, a claim could still be brought.

Been Unfairly Dismissed? Here’s What You Can Do

If, like in the case brought to the employment tribunal in Scotland, an individual believes they’ve been unfairly dismissed, swift action is essential. While a claim is typically a last resort, strict time limits apply to proceed.

In the first instance, it’s usually recommended to attempt to resolve the matter internally. It may be that an error has occurred, and appealing the dismissal could lead to a fast resolution, avoiding the stress and costs associated with legal action.

When internal avenues fail to deliver a satisfactory outcome, though, Acas early conciliation is often the next step. This free and independent process is required before most tribunal claims can be brought and provides another opportunity to resolve the matter without escalation.

However, where all else fails, it may be time to consider an unfair dismissal tribunal claim. To proceed, individuals must meet strict eligibility criteria and time limits. If they’re successful, they could be reinstated in their position and receive compensation.

If you think you were unfairly dismissed and want expert legal advice, contact us now. Redmans Solicitors are specialists in the employment sector, and after a brief chat, we can assess your case and discuss your options.

To get started, simply:

• Phone 020 3397 3603
• Request a callback via our online form