ET Awards £22,000 to Ambulance Driver Who Punched a Drunk Patient in Self-Defense
The Facts in Mr M Harvie v Scottish Ambulance Service Board
Mr Mark Harvie (“The Claimant”) had worked for the Scottish Ambulance Service Board (“The Respondent”) as an ambulance driver since 1 September 2008. During his employment with the Scottish Ambulance Service, he previously had an unblemished disciplinary record.
On 25 January 2022, Mr Harvie arrived at the Emergency Department of Raigmore Hospital after collecting a drunk patient who’d fallen in a bar. Mr Harvie entered the hospital to learn if the patient could be transferred to their care.
On his return to the ambulance, a drunk individual was blocking the exit, so he bent down to ask them to move. However, the individual began swearing at Mr Harvie. So, the ambulance driver asked him to stop, threatened to call security and returned to his vehicle.
Shortly after, the individual forced the ambulance driver’s door open and threatened Mr Harvie that he’d be waiting for him when he left the vehicle. As such, the claimant felt threatened and got out.
The individual stood back slightly but continued to abuse Mr Harvie, waving his arms erratically and pointing at him. Then, Mr Harvie believed the individual was in motion to head-butt the claimant.
Instinctively, Mr Harvie moved his forearm in self-defence to block the attack. However, he unintentionally punched the individual, causing them to shout that they’d been assaulted.
Police Charge the Ambulance Driver With Assault
At roughly midnight that day, officers of Police Scotland informed Mr Harvie the individual had made an allegation against him. They explained that after finding a small nip on his lip and reviewing CCTV footage, they were charging him with assault.
The Respondent Suspends the Ambulance Driver
After being charged, Mr Harvie immediately phoned the Ambulance Call Centre to inform them of the events. Then, on 26 January, the ambulance driver and his union representative met with the respondent. During this meeting, the claimant was informed he was suspended on full pay pending an investigation.
The respondent’s investigation was run by Mr Graham Cormack, the area service manager, and assisted by Ms Anna Morrison, an HR advisor.
On 24 February, as part of the investigation, Ms Morrison sought the CCTV footage of the incident and witness statements from security guards at the scene. However, the footage was held by a different NHS body, who said they couldn’t release it due to GDPR. They also didn’t authorise her to contact the security guards.
Then, on 3 March, Mr Harvie attended an investigatory meeting with Mr Cormack. He recollected the events and answered Mr Cormack’s questions.
After concluding his investigation, Mr Cormack prepared a report on 31 March. He explained that without the CCTV footage, they couldn’t confidently justify the claimant’s actions. Moreover, since the assault charge was under consideration, Mr Cormack reasoned the police must consider the claimant’s actions serious and not self-defence if they’re to proceed with it.
As such, Mr Cormack concluded that Mr Harvie’s actions had brought the Scottish Ambulance Service into serious disrepute and recommended the claimant be referred to a formal hearing.
The Ambulance Driver’s Dismissal
As a result, the claimant was invited to a conduct hearing on 7 June. Mr Harvie’s solicitor asked for this to be postponed because a procedural hearing was set for 27 July, with the criminal trial set for 7 September.
However, the respondent refused the request, even though the conduct hearing was postponed to 15 July. On 22 July, the respondent wrote to Mr Harvie, informing him of his dismissal for gross misconduct without notice and outlining his right to appeal.
Mr Harvie’s Assault Charges are Dropped
On 1 August, the Procurator Fiscal explained the assault charges were withdrawn. This was because they could see the ambulance driver had acted in self-defence after reviewing the CCTV footage.
An Appeal is Made
Then, on 3 August, the claimant appealed the respondent’s decision, with a hearing set for 7 September. However, on 5 August, the claimant was diagnosed by his GP with skeletomuscular pain brought about by stress. Therefore, he decided to withdraw his appeal.
Yet, after commencing early conciliation on 15 August, Mr Harvie brought claims against the respondent on 15 September.
The Decision of the Employment Tribunal
The tribunal found the investigation wasn’t full or fair, as it didn’t consider evidence that potentially removed Mr Harvie’s guilt, like waiting for the Procurator Fiscal’s views. Furthermore, they didn’t consider mitigating factors like the ambulance driver’s unblemished record.
They added that a police officer charging someone doesn’t automatically lead to an inference of guilt, as it’s just an allegation. Moreover, the contrary statements of the claimant and security guards questioned Mr Harvie’s guilt. Therefore, they found the respondent referencing the police charge in the report’s reasoning wasn’t an action of a reasonable employer.
They also felt the respondent acted unreasonably by not postponing the conduct hearing. Had they done so, they could’ve obtained the CCTV footage from the police hearing, which Mr Cormack implied was required to justify the claimant’s actions.
Furthermore, following the position in Walker on Civil Remedies, the tribunal found that, concerning self-defence, a reasonable employer would have considered:
- The drunk individual’s abusive behaviour
- The direct threats made to Mr Harvie
- How the individual opened the ambulance door
- The proximity the individual was to the claimant
- How the claimant believed the individual was about to head-butt him
They then explained that a reasonable employer should ask:
- What threat did Mr Harvie perceive there to be?
- Was this reasonable in the circumstances?
- Did he do what was reasonably necessary to avoid the threat?
- Was his action reasonably proportionate to the threat?
The tribunal believed that rather than considering these points, the respondent considered their own stance. Had they considered such points, self-defence would’ve been deduced.
In conclusion, the tribunal ruled that since Mr Harvie acted in self-defence, he’d been unfairly dismissed as his actions didn’t constitute gross misconduct. They added the respondent was in breach of contract for terminating his employment without notice, leading to his compensation.