United Kingdom Employment Appeal Tribunal

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URL: http://www.bailii.org/uk/cases/UKEAT/2011/0060_10_1506.html
Cite as: [2011] UKEAT 60_10_1506, [2011] UKEAT 0060_10_1506

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Appeal No. UKEATS/0060/10/BI

EMPLOYMENT APPEAL TRIBUNAL

52 MELVILLE STREET, EDINBURGH, EH3 7HF

At the Tribunal

On 15 June 2011

Before

THE HONOURABLE LADY SMITH

MISS J GASKELL

MRS A HIBBERD

STRATHCLYDE JOINT POLICE BOARD APPELLANT

MR ANDREW CUSICK RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant

MR D CAMPBELL

(Solicitor)

Legal Services Department

Strathclyde Police

Police Headquarters

173 Pitt Street

Glasgow

G2 4JS

For the Respondent

MR A CRAMMOND

(of Counsel)

Instructed by:

Thompsons Solicitors

Berkeley House

285 Bath Street

Glasgow

G2 4HQ

SUMMARY

PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity

Tribunal found to have erred in law in holding that Claimant, who was employed as a police training officer and had withheld information relating to the whereabouts of a known sex offender (his brother - in respect of whom a warrant for arrest had been issued), was unfairly dismissed:

(i) they had proceeded on the basis that, because the Claimant was employed by Strathclyde Joint Police Board, he owed no duties to Strathclyde Police Force, whereas the terms of the Police (Scotland) Act 1967 plainly show that he did;

(ii) applying the second part of the Burchell test, they had found that the Respondent had no reasonable grounds for its belief that the Claimant had committed an act of misconduct but their basis for that was that he was under no duty to provide information about his brother’s whereabouts to the police and that was erroneous; he was, plainly, in the circumstances, under such a duty and the findings in fact showed that the Respondent had reasonable grounds for their belief.

Appeal upheld and finding of fair dismissal substituted.

THE HONOURABLE LADY SMITH

Introduction

1. Andrew Cusick was a police training officer. He was dismissed for withholding information from Strathclyde Police Force relating to the whereabouts of a known sex offender (his brother), who had absconded and in respect of whom a warrant for arrest had been issued.

2. This is an appeal by Mr Cusick’s employer, Strathclyde Joint Police Board, from a judgment of the Employment Tribunal sitting at Glasgow, Employment Judge Alan Strain, registered on 12 August 2010, finding that the Claimant had been unfairly dismissed, ordering reinstatement, restoration of pension rights and awarding compensation of £26,649.

3. We will, for convenience, continue referring to parties as Claimant and Respondent.

Background

4. The Respondent is a statutory body (see: Police (Scotland) Act 1967 - “the 1967 Act”); and The Strathclyde Combined Police Area Amalgamation Scheme Order 1995 – “the 1995 Order”). The Claimant entered their employment as a police training officer on 25 October 2005. He had previously served as a police officer with Strathclyde Police Force, for 30 years.

5. The Claimant’s twin brother, Martin Cusick, was convicted of serious sex offences in 2005 as a result of which he became subject to the notification requirements of Part 2 of the Sexual Offences Act 2003 (“the 2003 Act”) for an indefinite period from which it can be inferred that his offences were of such severity as to have led to a custodial sentence for a period of 30 months or more (see: s.82(1) of the 2003 Act). That is, his details were recorded on what is often colloquially referred to as the “Sex Offenders’ Register”. In terms of section 86 of the 2003 Act, he was under certain notification obligations to provide travel details if intending to leave the United Kingdom, prior to doing so.

6. On 18 October 2005, Martin Cusick left the United Kingdom without complying with the requirement of s.86 of the 2003 Act. A warrant was issued for his arrest. The Claimant knew of the warrant and that the police were looking for his brother. It was not disputed that over a period beginning some 6-8 weeks after his brother’s departure up to April 2008, he received information about his brother’s whereabouts which he withheld from the police, despite specific enquiries being made of him. Matters came to a head in April 2008 when, at interview, he did advise the police that he believed his brother to be in Canada on account of an email he had received from his nephew in December 2007. He had also, at that time, been provided with a Canadian telephone number for him, he had an email address for him and he had received information indicating that his brother was working as a taxi driver. The Claimant’s brother was, shortly thereafter, arrested in Canada.

7. The Claimant was suspended and disciplinary proceedings ensued. After investigation, it was concluded that prima facie evidence existed that showed that the Claimant had withheld information which could have led to the earlier arrest of his brother. He was called to a disciplinary hearing and notified that the allegation against him was that it was alleged that he had:

“ … repeatedly failed to provide information to Police Officers concerning the whereabouts of his brother, Martin Cusick, a registered sex offender who had failed to comply with legislation/requirements contained within the Sexual Offences Act 2003.”

8. The relevant disciplinary procedures are set out in a document entitled “DISCIPLINARY PROCEDURES FOR POLICE STAFF Standard Operating Procedures” (“SOP”) paragraph 2.3 of which is in the following terms:

“2.3 The distinctive character of the Police Service depends largely upon the existence and maintenance of a general rule of conduct that inspires public confidence in its integrity. The standards of service therefore go beyond the standards of conduct and integrity in other organisations, as evidenced by the Police, Public Order and Criminal Justice Act 2006. An employee of Strathclyde Joint Police Board must at all times conduct themselves in a responsible and trustworthy manner, both within and outwith the working environment. If there is a substantial reason/link between the alleged misconduct with the job/workplace that could be detrimental to the discharge of duties and/or the working relationship, then disciplinary procedures may be invoked.”

9. Section 34 of the Police, Public Order and Criminal Justice (Scotland) Act 2006 makes provision for complaints to be made by members of the public about the police and about persons “serving with the police” (s.34(2)(f)), such as the Claimant. Under the provisions of that section, a relevant complaint is one which expresses dissatisfaction about any “act or omission” (s.34(2)) whether or not it occurs in the course of employment; section 34(4) provides:

“An act or omission need not be one occurring in the course of a person’s duty, employment or appointment (as the case may be) in order to fall within subsection 2(f).”

Serious disciplinary offences and gross misconduct are dealt with in Appendix B of the SOP, the preamble to which provides:

“Gross misconduct is defined as behaviour which in the Force’s view is subject to investigation and a disciplinary hearing warrants immediate dismissal regardless of whether or not there have been previous warnings. Such behaviour may occur within or outside normal working hours.”

A non-exhaustive list of examples of conduct which will be regarded as gross misconduct follows and includes:

“17. Irrevocable breakdown in trust and confidence.”

Other matters listed include defrauding “the Force”, maliciously damaging “the Force’s property”, and accessing “information held by the Force” without authority.

10. The hearing took place on 27 January 2009 and was chaired by Detective Chief Superintendant McAllister, who had no prior knowledge of the Claimant or his brother; he had not worked with either of them. Accordingly, whilst the Tribunal made a finding in fact that DCS McAllister “did not consider the Claimant’s previous service and record as a Police Officer”, the context for that finding is that he had no prior knowledge of the Claimant’s circumstances and there is no finding in fact that he was told anything about them at the disciplinary hearing. Nor was there any finding in fact that they were known to the Respondent who, as the Tribunal pointed out, were separate and distinct from Strathclyde Police.

11. DCS McAllister found that the Claimant had committed gross misconduct. By letter dated 23 February 2009, he advised the Claimant of his decision, explaining that:

“On the basis of the evidence presented to me, I am satisfied that throughout the police enquiries to trace your brother, Martin Cusick, you possessed information which could have assisted enquiries and expedited his arrest…

I have concluded that you would have been aware of the importance of the information and the potential consequences of timeous sharing of information in your possession being the arrest of your brother…

It is my view that you permitted your understandable concerns for your brother’s interests to outweigh your professional duty as a member of staff of Strathclyde Police to provide information which any reasonably–minded person would have anticipated would have been of importance to the police investigation…

I have concluded that I have no other option than to summarily dismiss you with immediate effect. I am of the view that your actions were incompatible with continued employment with Strathclyde Joint Police Board: trust and confidence has been irretrievably lost by your gross misconduct and I do not consider that any other disposal would be appropriate in the circumstances.”

The Claimant appealed, unsuccessfully.

The Tribunal’s Judgment

12. The Tribunal found that the Claimant had been unfairly dismissed, essentially because, in their view, as a civilian employee of the Respondent not of the police, he owed no duty to the police force; that meant that the Respondent did not have reasonable grounds for its belief that the Claimant had committed an act of misconduct. That was, we observe, not the Claimant’s case as articulated in the written submission prepared by counsel for the Claimant and presented to the Employment Tribunal (the only argument advanced there is that dismissal was an excessive sanction given the level of dishonesty involved, given that the Claimant was not prosecuted, and given his “34 years of service and unblemished record”) and no such submission is recorded by the Tribunal as having been made. In the course of the hearing before us, Mr Crammond asserted that he had in his oral presentation made a general submission that the Respondent did not have reasonable grounds but he did not suggest that he had articulated it so as to seek to found on the fact that the Claimant was not employed by the police force but by the Respondent. It appears that that matter was not aired at the hearing before the Tribunal although it subsequently became the rationale for the Tribunal’s judgment. They state:

“31. What was accepted by all parties was that the claimant was under no legal obligation to assist the Police with the provision of this information. Furthermore the Tribunal observe that the Claimant was not employed by Strathclyde Police Force and had no obligations to them under employment law. He was employed by Strathclyde Police Joint Board as a civilian employee. The Tribunal therefore had to consider the fact that the Claimant’s lack of co-operation (such as it was) was with Strathclyde Police and was an action which took place outwith the workplace.”

13. The Tribunal’s focus would appear to be on the question of what, as a matter of law, the Claimant was obliged to do, perhaps on the basis that there was no provision of the 2003 Act which required him to disclose the information. They continue:

“31. The Tribunal also considered the fact that both parties had conceded there was no legal obligation on the Claimant to have provided this and indeed to have co-operated with the Police. The Tribunal then had to consider whether or not the Claimant’s alleged failings were somehow in breach of the Standard Operating Procedures, paragraph 2.3, production 3, to the extent that the Respondents had reasonable grounds upon which to sustain the belief of misconduct. Having considered that, it was the Tribunal’s opinion that any employer acting reasonably would not have considered there was a breach of paragraph 2.3 of the Standard Operating Procedures (Production 3). The Claimant had not done anything or omitted to do something which was unlawful. The Claimant had not undertaken any conduct which could properly be construed as “misconduct”. Doubtless the Respondents would have preferred the Claimant to have provided the information to the Police but they candidly accepted that he had no legal obligation to do so. Even if the conduct could be categorised as “misconduct” the Tribunal is of the opinion that any employer acting reasonably would not have concluded that there was a substantial reason or link between the alleged misconduct with the job or workplace that could be detrimental to the discharge of duties and/or the working relationship.”

On that basis, the Tribunal held that the Respondent had no reasonable grounds on which to sustain a belief in the Claimant’s misconduct. They added, without explanation, that the evidence did not show “that the Claimant’s actions would have had an adverse bearing on his suitability for the job” or “would affect a serious breach of trust and confidence between employer and employee.”

14. The Tribunal also explain that, in any event, they considered that the dismissal was not fair. They set out their reasons for that conclusion in paragraph 35. They were first, that the conduct complained of took place outwith the workplace and working hours, secondly that the Claimant was not legally obliged to provide the information, thirdly that the Respondent did not take into account that the Claimant’s exemplary record as a serving police officer and unblemished record as a member of their civilian staff, and fourthly that the Claimant’s conduct was direct towards a third party. They also found that the Claimant had not contributed to his dismissal because there was no obligation on him to provide the information (paragraph 37).

Relevant Law

Misconduct Dismissals

15. The Claimant was dismissed on grounds of misconduct, a potentially fair reason for dismissal (Employment Rights Act 1996 s.98(2)). The discussion by Arnold J, in British Home Stores v Burchell [1980] ICR 303 at p.304 of the approach to be adopted by an employment tribunal when considering whether an employer has established misconduct as the reason for a dismissal, is, accordingly, relevant. The three elements of his analysis are well known (genuine belief, reasonable grounds for the belief, and a genuine belief formed only after a reasonable investigation) and we do not propose to rehearse them in detail. It was only the second element which was at issue in the present case, namely whether, when the Respondent formed its belief in the Claimant’s misconduct, it:

“…had in … mind reasonable grounds on which to sustain that belief.”

An employer does not have to be certain as to the grounds for his belief (AEI Cables Ltd v William McLay [1980] SC42). The test is one of reasonableness.

16. If the “Burchell test” is passed and the dismissal is, accordingly, potentially fair, when it comes to considering, under s.98(4) of the 1996 Act, whether it was fair, a tribunal requires to be careful to make an objective assessment. It must avoid falling into what is often referred to as the “substitution mindset”: see, for instance, London Ambulance Service NHS Trust v Small [2009] IRLR 563 CA. It is not a matter of the tribunal asking itself whether or not they would have dismissed the claimant. Further, the tribunal ought to consider the question of what a reasonable employer would have done in context; that is, by asking themselves not just what any employer, acting reasonably, would have decided but what a reasonable employer whose business/activities were the same as or similar to those of the respondent, would have done in the circumstances: see Ladbrokes Racing Ltd v Arnott [1981] SC159, where the Lord Justice Clerk referred to considering what “would have been considered by a reasonable employer in this line of business in the circumstances which prevailed”.

The Police

17. Police forces in Scotland are established by police authorities and are creatures of statute under the 1967 Act. They have no employees. The area of Strathclyde is served by a combined police authority, namely the Respondent, which was established by the 1995 Order. Each police force consists of a chief constable, regular constables and special constables (1967 Act s.3). Those persons are office- holders. They are not employees.

18. In terms of s.9(1) of the 1967 Act, police authorities such as the Respondent are empowered to employ civilians for certain purposes. It provides:

“9. Civilian employees.

(1) A police authority may –

(A) employ for the assistance of the constables of a police force maintained for their area, or otherwise to enable the authority to discharge their functions, officers who are not constables;”

19. Section 9(1) shows, accordingly, that the only purpose for which officers can be employed by a police authority such as the Respondent is to assist the constables (i.e. the chief constable, the regular constables and any special constables) of the local police force. It is, accordingly, plainly the duty of a civilian employee such as a training officer, to assist the constables of the relevant police force. That is the whole purpose of the role of such an employee. To put it another way, the statutory provisions demonstrate that an important part of the work of a police authority such as the Respondent is to employ civilians to provide assistance to the police force for their area.

20. Where a police authority employs civilians, they are required to exercise their power as directed by s.9(2):

“ 9(2) The police authority shall exercise their powers under section 56 ( and section 63) of the Local Government (Scotland) Act 1973 so as to secure that…………any person employed or appointed by the authority under subsection (1) above is under the direction and control of the chief constable of the police force.”

and, further, the police authority’s powers so far as employing (and dismissing) civilians is concerned, are subject to the control of the chief constable of the local police force:

“9(4) The powers of direction and control referred to in subsection (2) above include powers of engagement and dismissal.”

21. Section 56 of the Local Government (Scotland) Act 1973 empowers police authorities to make arrangements for certain functions, such as the employing of civilian staff, to be delegated to a committee. The fettering of that power in the manner set out in subsection (2) demonstrates that it is inherent in the power to employ civilians that they be employed on the basis that they are subject to the direction and control of the chief constable. In contrast, constables are subject to the direction of the relevant chief constable but are not subject to his/her control (section 17(2)) of the 1967 Act. The chief constable of a police force exercises greater control of the civilian employees assisting his constables than he does of police constables, who possess a degree of autonomy which is absent from the civilian role.

22. Thus, the Claimant not only had a duty to assist police constables in the Strathclyde Police Force, under section 9(1) but he was also subject to the direction and control of the Chief Constable of Strathclyde Police who had the power to direct that he be dismissed. We note that the Claimant’s dismissal was not the result of such a direction but it is, we consider, nonetheless fundamental to a proper appreciation and understanding of the true nature of the Claimant’s employment relationships, to take account the extent to which he was subject and, accordingly, answerable to the Chief Constable of the local police force, Strathclyde Police.

23. We note that circumstances may arise in which a civilian employee is found to have been acting as agent for the relevant chief constable: see, for instance, the group of cases reported as Yearwood Commissioner of the Police of the Metropolis [2004] ICR 1660, where a civilian employee of the local police authority was held to have been acting as agent of the Chief Constable of Merseyside in making discriminatory comments in the course of disciplinary proceedings which he was conducting. The relevant statutory provisions showed that the circumstances of the civilian employee’s employment were directly comparable to those of a civilian employee under the 1967 Act.

Withdrawing Concessions/ New Arguments on Appeal

24. Where an appellant seeks to withdraw a concession made at the hearing before the employment tribunal, this tribunal requires to bear in mind the terms of the overriding objective (Employment Appeal Tribunal Rules 1993, para.2) and consider whether it would, in all the circumstances, be in the interests of justice to allow the withdrawal to be made. Similarly, where either party seeks to advance an argument not advanced at the tribunal, the test is, essentially, whether it would be just to allow the argument to be advanced for the first time on appeal. That, we consider, is what, correctly, lay at the heart of the oft quoted judgment of this Tribunal in the case of Kumchyk v Derby City Council [1978] ICR 1116 where the appellant sought to advance an argument that a certain term was implied into the contract of employment which, for its consideration, would have required consideration of a factual framework which had not been explored in evidence.

The Appeal

25. Mr Campbell submitted that the Tribunal had erred in law in five respects.

26. First, they were quite wrong to proceed on the basis that the Claimant’s employment did not involve him owing any duties to Strathclyde Police. The statutory framework (to which we refer above) made it plain that he did. Insofar as any concession had been made by the solicitor who appeared before the Tribunal, to the effect that the Claimant was under no legal obligation to assist the Police at all, he sought to withdraw the concession. It was accepted that the 2003 Act did not involve any duty to disclose but that was far removed from saying that the circumstances of his employment did not give rise to any such duty. The very purpose of his employment was, in terms of section 9(1) of the 1967 Act, to assist constables of the Strathclyde Police Force.

27. Secondly, given that the Claimant was in fact under an obligation to assist the police, the Tribunal had plainly erred in law in determining that he did not commit an act of misconduct. It was plain from the nature of his conduct that he did so; reference was made to those terms of the SOP to which we have referred above. Further, the Tribunal had, irrelevantly, taken account of whether or not the Claimant’s conduct was unlawful and had, erroneously, proceeded on the basis that there was no evidence of a serious breach of trust and confidence when it was apparent from the terms of the letter dismissing the Claimant that that was the case.

28. Thirdly, the Tribunal had erred in substituting its own view as to whether or not a reasonable employer would have dismissed. Mr Campbell referred, in support of that submission, to Iceland Frozen Foods v Jones [1983] ICR 17, Foley v The Post Office [2000] ICR 1283, and AEI Cables Ltd v McLay. The task for the Tribunal was to ask what a reasonable police authority or joint police board would, in the circumstances, have decided (Ladbroke Racing Ltd v Arnott).

29. Fourthly, the Tribunal had erred in holding that the Respondent ought to have taken the Claimant’s previous service as a police constable into account. Their approach failed to recognise that his employment with the Respondent had only commenced in 2005. Further, there was no evidence before the Tribunal and no findings in fact to the effect that DCS McAllister had any knowledge of the Claimant’s prior service as a police constable. Even if there had been such evidence, length of service was, in any event, but a factor which an employer was entitled to take into account. He was not bound to do so: AEI Cables Ltd; Strouthos v London Underground Ltd [2004] IRLR 636.

30. Finally, the Tribunal had erred in failing to find that the Claimant had contributed to his own dismissal. Their conclusion was based on their erroneous view that he had no obligation to disclose information about his brother to the police. It was plain that his own conduct was causative of his dismissal.

31. For the Claimant, Mr Crammond submitted first that the Respondent should not be allowed to withdraw the concession to which we have referred and should not be allowed to pursue their first ground of appeal regarding the Claimant’s duties that were advanced under reference to the Police (Scotland) Act. He referred, in support of that submission to Kumchyk v Derby City Council.

32. Regarding the first ground of appeal, Mr Crammond submitted that s.9(2) of the Police (Scotland) Act did not form the basis of any duty between the Claimant and the Chief Constable; insofar as it demonstrated the existence of any duty, it was incumbent only on the Respondent and restricted to their requiring to secure those matters set out in section 9(2). It did not show that there was any duty owed by the Claimant to the police force or the relevant chief constable. Further, the Claimant’s conduct was clearly conduct outwith the workplace and not relevant to the employment relationship.

33. Regarding the second ground of appeal, Mr Crammond submitted that even if the Tribunal had erred in mis-stating the nature of the employment relationship, it was clear from the SOP that the Claimant had not breached any duty owed.