Mr K Aitken v The Scottish Ministers Acting Through Their Agency, The Scottish Prison Service: 8000360/2025
JUDGMENT
The Judgment of the Employment Tribunal is that the claimant’s claim of unfair dismissal fails and is dismissed.REASONS
[1]The claimant presented a claim to the Employment Tribunal on 11 February 2025 in which he complained that he had been unfairly dismissed by the respondent.[2]The respondent submitted an ET3 response in which they resisted the claimant’s claim, while admitting that they had dismissed the claimant n the grounds of gross misconduct.[3]A Hearing was listed to take place on 23 to 25 June 2025 in the Employment Tribunal, Edinburgh. The claimant was represented by Mr C Harrington, solicitor, and the respondent by Ms Armstrong, solicitor.[4]A joint bundle of productions was presented to the Tribunal and relied upon by both parties in the course of the Hearing.[5]The claimant gave evidence on his own behalf. The respondent called as witnesses Gillian Walker, Governor in Charge, HMP Shotts; and Jane Hughes, Human Resources Business Partner.[6]In addition, CCTV footage was shown to the Tribunal during the course of the Hearing, with the consent of both parties. It was agreed that any part of the Hearing during which the footage was shown would be held in private, on the basis that parts of the prison building are visible on the footage.[7]The name of the prisoner involved in this case, and indeed the name of any prisoner mentioned in these proceedings, has been anonymised. That prisoner will be referred to as IB.[8]Following the adjournment of the Hearing, written submissions were provided to the Tribunal.[9]Based on the evidence led and the information provided, the Tribunal was able to find the following facts admitted or proved. Findings in Fact[10]The claimant, whose date of birth is 9 February 1960, commenced employment with the respondent on 4 February 1991. For the majority of his career, the claimant was employed as a Residential Officer in His Majesty’s Prison Shotts (HMP Shotts), based in Lamont Hall.[11]The respondent is responsible for the operation and management of prisons under the authority of the Scottish Prison Service, an agency of the Scottish Government, including HMP Shotts. They require to provide custodial and rehabilitation services for those sent to the prison by the courts.[12]The claimant was expected to comply with a Code of Conduct dated 23 February 2018, which sets out a number of disciplinary rules and procedures, its terms having been agreed with the respondent’s recognised trade unions, including the Prison Officers’ Association (Scotland) (POAS)(43ff).[13]The claimant’s responsibility was to supervise a number of prisoners, with other residential officers, in Lamont Hall. At the relevant time, there were approximately 60 to 66 prisoners resident in Lamont Hall.[14]On 1 May 2024, the claimant was provided with a letter from Gillian Walker, Governor of HMP Shotts (111), which advised him that due to “concerns about your conduct”, she had requested that an Investigating Manager be appointed to report to her on these concerns. She advised that Sarah Gibb from the Conduct Investigation Unit would carry out the investigation into the allegation. She attached a letter headed “Notification of Gross Misconduct Investigation” (dated 2 May 2024)(112) and advised himself to familiarise himself with Sections 12 to 17 of the Code of Conduct, and particularly Section 14. She confirmed that she had decided not to suspend the claimant at that time.[15]In the attached Notification letter, Ms Walker identified the details of the allegation as follows: “It is alleged that on Sunday 7 April 2024 between approximately 16:30 and 17:30, in Lamont Hall, HMP Shotts, you failed in your duty by failing to follow procedures in the care and management of 3546 [IB], inclusive of failure to effectively apply the Management of an Offender at Risk (MORS) Policy. If proven, this could be considered to be a breach of the SPS Code of Conduct Policy and SPS Professional Charter.”[16]The Notification letter went on to advise that the investigation should be concluded by 24 July 2024.[17]As part of the investigation, Ms Gibb was provided with a number of documents, which were subsequently shared with the claimant.[18]An incident report form was completed on 8 April 2024 (201). The report was noted to have been prepared on 30 April 2024. The narrative was said to be “Death in Custody”, with a description of “Suspicious Circumstances”.[19]The report stated: “At approx. 07:43 hrs staff from Lamont Level 1 were conducting numbers check when they called for a code blue upon reaching 3546 IB (SO L1/26 cell. IB was lying on the floor on his front with his head towards the door and it was suspected that he was deceased. The responding nurses confirmed this however paramedics were required to confirm the death. From the outset an emergency ambulance was contacted at approx. 07:51 hrs as well as Police Scotland and the Duty Governor. Screens were placed at IB’s door as nurses and paramedics assessed the situation. All prisoners on the level were informed of an ongoing incident and the restrictions this would place on the regime, they were offered all available support as were the staff involved. Paramedics entered the establishment at approx. 08:06 hrs and the time of death was confirmed as 08:10 hrs. in between times the cell has not been required to be opened, a security restrictor has been placed on the door and the cell was left in the state ist was found. Police Scotland entered the establishment at approx. 09:35 hrs for initial assessment and statements. Police Scotland are presently waiting for CID to enter the establishment and they will arrange transport via private ambulance when appropriate. All staff involved have been instructed to complete police witness statements surrounding this incident and Police Scotland have notified IB’s next of kin. No confirmed cause of death at this time.”[20]Police witness statements were also provided.[21]Stephen Bingham completed a witness statement at 08:30 on 8 April 2024 (202). He confirmed that he was on duty on 7 April 2024 from 08:00, on landing level 1 with the claimant, Barry Peden and Lauren Dunn for the duration of the day shift.[22]He stated that while he was on post on 8 April 2024, he was informed that IB had passed away. He said: “Throughout the 07/04/2024 day I can recall seeing IB pass the desk a few times and at feeding and while checking where he appeared to be ok. The last time I saw IB I believe was at check-up around 5pm on the 07/04/2024 where he was seen to be sat up in his bed watching the TV.”[23]Barry Peden completed a witness statement on 12 April 2024 at 12:00 (206). His statement noted: “On the 7th of April 2024 I was working on Lamont level 24. 1 as a residential Officer, with Officers Kenny, Lauren Dunn and Stephen Bingham. The last time I can recall seeing IB 3546 on the 7th April 2024 was when he called for his medication at approximately 16:30. IB looked confused when walking away from the medication Hatch but if IB was under the influence of any substances at that time I didn’t think that he was at any risk to anyone or himself at that time. I am not medically trained in anyway to say he was or wasn’t under any substance. IB didn’t seem any different from his normal behaviour.”[25]The claimant’s statement dated 18 April 2024 (209) stated: “At approx. 16:50 on 07/04/24 I was made aware of a conversation between 3546 IB and nurse Emily at the meds hatch on Lamont one. IB appeared to be confused and was asking the Nurse and was asking the Nurse (sic) what had just happened. I asked Emily and she replied that she had not given IB his supervised medication at this stage she did not elaborate as to why. I noticed that she had not carried out any formal assessment or checked his observations on IB. I began to walk IB back to the south side of the flat towards his cell area, he asked me if I was placing him behind his door on report I replied no… I am just making sure you are ok he told me not to bother as he was brand new he headed into his cell I began to lock up the south side until I was radioed to help lock up the North as there was a situation going on in the north section. I had no further action with IB that night.”[26]Lauren Dunn provided a statement dated 24 April 2024 (211) in which she said that for the majority of her shift on 7 April 2024 she spent very little time in the south section and had no personal dealings with IB, and was not in the area when he was allegedly refused medication or allegedly appeared under the influence. She only became aware of IB’s circumstances when she returned on shift (understood to refer to the following day).[27]Emily Higgins, Registered Nurse, provided a statement dated 8 April 2024 (213ff).[28]In her statement, Ms Higgins stated: “I Emily Higgins, Primary Care Nurse (PCN) was administering PM medication. Patient approached the treatment room hatch in L1 during PM medication round at approximately 16:30 on Sunday 7th April 2024 to receive his PM medication as prescribed. The patient arrived without water, upon giving him a medication cup filled with water I noticed his pupils were pinpoint. I asked patient if he was ok which he replied ‘I’m fine’. I asked if he had taken any illicit substances which he denied. His speech appeared slurred to which point I advised him I was not willing to give him his medication as I believe he head taken something. This was documented in the patient’s Kardex. The patient walked away from the hatch in the wrong direction of his cell. SPS officer Kenny Aitken directed the patient to his cell. SPS officer Kenny Aitken arrived at the hatch asking if I had given him his medication to which I responded no and advised I believe he may be intoxicated due to his speech being slurred. I communicated this to him to make him aware of the patient presentation as I know Management of Offenders at risk of substances (MORS) is an SPS policy. Before leaving L1 I then further advised all SPS staff sitting at the desk that I had not administered patient’s medication due to thinking he was intoxicated in case they did not hear me passing it on to Kenny.”[29]She went on to explain what had happened when she received the code blue call on 8 April 2024 at 07:43, but when she arrived she was advised that IB was dead. She also advised that at approximately 07:49 she spoke with SPS officer Alexander Manson advising him of IB’s presentation the previous evening, and that she had not administered his medication to him, and passed this on to SPS staff present at the time.[30]A statement was produced by another nurse, Diane Gillan (undated) (217).[31]She noted that “Emily Higgins advised Linda Ross and I at approx. 08:10 [on 8 April] she had seen patient the previous evening Sunday 7th April 2024 at approx. 1630 to administer PM medication and withheld them due to the patients presentation as he appeared to be under the influence of an illicit substance, where he presented with pin point pupis and when asked if he was okay his speech was slurred and due to this she advised she communicated with SPS staff as it is an SPS policy and decision to place patients on MORS hence why she said she communicated this and why.”[32]Linda Ross, Nurse Practitioner, completed a witness statement on 9 April 2024 (223). She recorded what she had witnessed when she and others attended IB’s cell on the morning of 8 April 2024 following the code blue. She went on: “As we walked back to the SPS desk area where several of the SPS staff were standing, an SPS staff member commented that nurse Emily Higgins had seen the patient the evening before, Sunday 7.4.24, as she was giving out the supervised medications and that she had withheld the patients’ medications as he appeared to be under the influence of an unknown illicit substance. Diane Gillan and I walked out of the Lamont Hall at a08:03 approx. Nurse Emily Higgins informed myself and Diane Gillan at around 08:10am that when she asked the patient if he was okay, he replied ‘yes’ but Emily noted that the patient was slurring his speech, he was heading in the wrong direction to where his room was and that his pupils were pinpoint. She then went on to inform the SPS staff of her decision and why, as this is SP policy and that at that point he should have been put on MORS, which is an SPS protocol.”[33]The claimant was invited to attend an interview in connection with the allegation of gross misconduct, by letter dated 20 June 2024, on 16 August 2024.[34]The claimant attended at the interview meeting on 16 August 2024. The interviewer was Sarah Gibb, and the claimant was accompanied by Alan Stuart. Notes were taken, which were a reasonably accurate record of the interview (124ff).[35]The claimant described IB as being “heavily medicated”, so he would need to be taken to get his medication two or three times a day, and he would provide any help to him which he asked for. They would also speak about football together. He was aware that he had a history of failed drug tests, and being placed on MORS.[36]During the interview, CCTV footage taken from Lamont Hall showing the events around the time of IB’s interaction with Nurse Higgins and the claimant on 7 April 2024 was shown.[37]When IB went to the medication hatch, the claimant said that “I was monitoring what was happening with the medication and keeping an eye on the Nurse as well. There was a bit of a commotion at the hatch, obviously he’d been told he wasn’t getting any medication and he was questioning that and he started to grow a little bit loud, so I asked the Nurse, you see it on the CCTV, I asked her if everything was okay and she said ‘Yeah’. So I basically went over to see what was going on and she said to me that she hadn’t given him his medication, she never gave me any reason for that, but then again, they don’t usually anyway, ‘cause it’s medical in confidence and everything so…”[38]When asked about the commotion at the hatch, the claimant said “He started to say ‘Why?’ you know ‘Why not, what’s going on?’ he wasn’t abusive to her or anything like that, he just kinda raised voices made me keep an eye on what was happening and as you can see, the rest of the staff are quite relaxed about it, so it wasn’t you know, a screaming and shouting match where we were worried she was going to get assaulted or anything like that.”[39]The claimant was asked about IB’s presentation at the time when he was at the hatch. He said “Just the same as he always was, he was always shuffling about. Apparently he had quite a bad back injury years ago, so he kinda shuffled everywhere he went and anybody that knows IB knows he presents like that.” He said that IB was fine when he directed him back to his cell.[40]He confirmed that he had then gone to the hatch and checked that everything was okay, at which point the nurse told him that she had withheld IB’s medication from him. He reported that conversation as follows: “Well basically asked what was going on and she said ‘I’ve not given him his medication’ I went ‘right, okay’. To be honest, there was no point me asking why not, because they don’t tell us, so I didn’t really say you know ‘Why not?’ She never said ‘I’ve got concerns that he’s under the influence’ or anything, she never mentioned that at all.”[41]He was asked about his comment that nurses don’t tell him anything about why they had withheld medication: “Yeah, well they’ll tell us like if they’ve forgot the Kardex or something like that ‘He’ll be getting it later’ but she never …never let on, she never said ‘Aw I believe him to be under the influence’ or anything like that, she just said ‘He’s not getting his medication, can you explain to him?’ I said ‘Yeah, I’ll explain to him’”.[42]Sarah Gibb asked the claimant to confirm whether NHS staff would not share with him the reason for withholding medication, particularly when this has a potential impact upon SPS policy, such as MORS. He replied “Yeah, they don’t tell us.”[43]When pressed as to whether or not he should have asked Nurse Higgins for more information, and whether it was something he should have been aware of, but didn’t ask, the claimant responded: “Well see to be honest, I know we’re two separate entities, the prison and the Nurses, but we should know what’s going on. I mean it’s alright saying ‘I’m doing this because I’m medically trained’ and everything but they should at least have the decency to say to us ‘I’m not giving him his medication, I believe he’s under the influence’ or something like that you know and then we’re in full receipt of the information then.”[44]He did say that they would sometimes advise that medication was not given because they had forgotten the Kardex (that sheet from the individual’s medical records which shows the current prescriptions to be dispensed to the patient), or his medication was being stopped or reduced.[45]Ms Gibb asked the claimant about IB’s presentation, in relation to which she felt he appeared from the CCTV to be disorientated and staggering. He replied that this was his presentation, and that he was like this all the time. He did say that IB headed into the north section, whereas his cell is in the south section, so he had told IB to get into his own section as the locking up procedure was about to start. The claimant said that IB was “quite clear and lucid when I told him to get back to his own section and he done it without arguing. So at that time, using my experience, I realised he wasn’t under the influence or I didn’t believe he was under the influence.”[46]He asserted that if IB had been under the influence, he would normally have stood and argued about it with him. IB’s main concern, he said, was whether he was on report, which he was not. In fact, he said, IB was quite free to go in any direction he wanted at that point, but he did not want IB to be complaining to his friends and stirring them up by complaining that he had not had his medication. He insisted that IB was not confused about walking back to the section but confused as to why he had not received his medication.[47]He went on to say that “I’ve known him a long time, I’ve seen him a lot worse than that and he’s not been put on obs, he seemed fine. I spoke to him, he answered my question. He asked questions ‘Am I on report?’ and when I told him to go back to his own section, he did so straightaway which to me, led me to believe that he’s understood everything I’d said to him and he was fine, he walked away, he didn’t stagger away, he shuffled away as usual.”[48]The claimant also confirmed that he advised his colleagues at the desk, namely Officers Dunn, Bingham and Peden, that IB had had his medication withheld.[49]The claimant also made reference to another prisoner, BM, who was placed on MORS due to the “state he was in”. It had been noted that the CCTV footage had shown a prisoner who had been picked up by another prisoner to take him to his cell as he was unable to walk on his own. He observed that Nurse Higgins had come down to assist with BM, but he was surprised that she did not tell the claimant about the reason for having withheld IB’s medication at that point, or asked him if he had placed IB on observations.[50]Following this interview, Ms Gibb also conducted interviews with Barry Peden (140ff), Stephen Bingham (150ff) and Lauren Dunn (162ff).[51]Mr Peden advised that IB did not appear different from his normal demeanour, and that having observed the CCTV footage, said that IB did not have a normal walk. He could not remember the claimant telling him or the other officers at the desk anything after having been at the medication hatch. He had no recollection of being told anything by the claimant or Nurse Higgins. He said that putting people on MORS was a daily event.[52]In Mr Bingham’s interview, he did not recall IB staggering, or seeing that. He did not recall either the claimant or Nurse Higgins telling him at the desk that the medication had been withheld from IB. He was asked if he recalled anything. He replied: “No. If there was something said about that, then… if a Nurse had told us that we’ve withheld his meds, in the past, I don’t know how many times I’ve went up and put people on MORS, especially if a Nurse told you, it would just happen, 100% yeah.”[53]Ms Gibb asked him what the process would have been if Nurse Higgins had said that she had withheld his medication. He replied: “Well, you would go over, put him behind his door, two of yous normally, given staff, somebody else would be printing out the front page for his MORS Policy, somebody else would be digging out the obs sheets and that and getting that all together. If the Nurse has normally got their equipment, they’ll do his obs, they’ll come over, sign their counterpart of the front sheet and stuff and then depending on what he’s placed on, you’d observe him every 15, half hour, hourly, just any given day we’d do it like so…”[54]He was clear that on this occasion Nurse Higgins had not said this to them at the desk. He also said that he did not have any conversation with the claimant about IB that day.[55]Lauren Dunn also said that if she had been aware (and she said she was not) that IB’s medication had been withheld, she would have taken the “correct action”, namely placed IB on MORS.[56]Ms Gibb also conducted an interview with Emily Higgins (168ff) on 8 July 2024.[57]She asked Nurse Higgins whether she was aware of IB’s normal behaviour and presentation. She said that she would know his normal presentation from his time at the hatch, which was when she had (briefly) met with him before.[58]She explained what had happened on 7 April: “I was in Lamont delivering the medications and then IB, just waiting on him coming up to the hatch. So then he came up to the hatch and as soon as I seen him, I was like oh, it was his pupils I noticed and I was like oh, I think he’s maybe took something, but I noticed he hadn’t came with water, so I gave him a glass of water and if I remember correctly, I think he actually spilled his water and I said ‘Are you okay?’ and he was like ‘Aye, fine’ and I was like mmhh. I was ‘Have you took anything?’, which he denied however, I I wasn’t happy and I thought no, I’m not happy that he hasn’t took anything. So I told him I was withholding his medication. I was like ‘Sorry, you’re not getting your meds, tonight;. He was fine, he never even argued with me, he kinda walked away in the wrong direction of his cell. I told the SPS Officers. One of them came up to the hatch to speak to me, so told him he didn’t get his meds, because I wasn’t convinced that he hadn’t took anything, so that was fine, he never got his meds and then I left Lamont but before I left, I spoke to the Officers at the desk, I think there was three sitting there, I can’t actually remember for definite how many were there, but roughly maybe three Officers, just told them ‘Just to let yous know, I have refused him his medication, because I think he has took something’ so they were aware and then I just left Lamont Hall.”[59]She did confirm that she did not carry out any kind of formal assessment of IB. However, she said that she did notice that his speech was “a wee bit slurred as well”.[60]She went on to say that she had received information that the Officer with whom she spoke at the hatch was the claimant, and explained: “Yeah, just briefly, I remember he came up and I had just said ‘I’m not convinced he’s not took something. I think he has’ and I said ‘So I’ve not actually gave him his medication, because I think he’s took something’ and then Kenny was like ‘Right, so he’s not been given his medication?’ and I said ‘No, he’s not been given his medication’ so he was aware at that point that he hadn’t been given his medication.”[61]She confirmed that MORS was not mentioned in her conversation with the claimant.[62]Nurse Higgins also reiterated that she spoke to the Officers at the desk and told them that she had withheld IB’s medication, because she suspected that he had taken something. The Officers did not say anything but nodded in acknowledgement.[63]She considered that once she had let them know of her decision, it was up to them to decide what the next step should be, including whether the prisoner should be placed on MORS.[64]Ms Gibb conducted a further interview with Nurse Higgins on 14 August 2024, (176ff) as she wished to ask further questions about the care and management of IB on 7 April 2024.[65]When asked what IB had said to her at the medication hatch, she replied “I think I just asked him ‘Are you okay?’ yeah, I think he was like ‘I’m fine’ and then obviously I realised he wasn’t fine, he definitely had taken something. I did ask him that. I did ask him if he had took something, but he said ‘No’ he denied it, but it was obvious to me that he had.”[66]Ms Gibb also asked her about why she was called back to the Hall later, in connection with the prisoner BM, and she recalled that that was the case. She said that there was no further dialogue with anyone about IB at that point.[67]Ms Gibb conducted an interview with Diane Gillan, Primary Care Practitioner, on 12 July 2024 (180ff). She explained how it was she had come to know that Nurse Higgins had withheld IB’s medication on 7 April 2024, on the following morning: “[FLM Chris Henderson]… Had said that ‘I think we’ve got a bit of an issue’ and I was like that ‘What do you mean?’ and there was another Officer there, standing behind at the desk in Lamont 1 and he basically just … Kenneth Aitken his name was, he basically said ‘Aw that wee lassie that was in there, refused his meds last night’ and I was like that ‘What do you mean?’ and he said … he says ‘That wee lassie’ I says ‘Emily?’ and he went ‘Uh huh’ he said ‘She refused his meds last night’ I said ‘Why?’ he’s like that ‘Aw I don’t know’ I was like ‘You don’t know?’. So at that point obviously, because it was first thing in the morning, I’ve no been able to liaise with Emily and I was getting this off of them, so I didn’t know what had happened. I said ‘Well I can’t comment, ‘cause I wasn’t on the night before’ I says ’So I cannae really say anything about that’ and then he says ‘Well…’ he says ‘I’ve got…’ I says ‘She didn’t say why?’ and he went ‘No, no, no’ he’s like ‘I’ve no got any clue’ and I thought that’s a bit bizarre, ‘cause we would always say why you know and it was after that, once I’d came to the Health Centre and spoke with Emily. Emily actually came to me and she said ‘I refused his meds last night’ she said ‘I said to that man that was in there, Kenny Aitken, I’d said to him, I think he appears under … he appears under the influence, I’m no giving him his meds, he’s no himself’ because IB was very well known to us, never an issue with him and he would always present the same way. Funnily, he would just come straight up to the hatch and walk straight back again to his cell, it was the same behaviour you know and she said ‘It was really bizarre’ I said ‘Oh right’ she says ‘And I told Kenny. Listen, I’m no liking the way he is, he doesn’t seem right’ and … so he then, as far as I’m aware, escorted him back to his cell and then when she was done, she said to the rest of the team that was on, that’s what she liaised with me, I says ‘Right’ I says ‘You’ve no done anything wrong’ I says ‘Because obviously it’s an SPS policy’ I says ‘You’ve gave them your concerns’ I says ‘So then they do the next step’ she was like ‘Right’ ‘cause she was … you know that way she had herself all going and that’s basically what was surrounding that and that was really it.”[68]Ms Gillan advised that she would always tell a member of SPS staff why she was withholding medication if she did. She went on to say that “…me personally, I would be recommending that they go on MORS, more to safeguard SPS, them themselves and us and obviously the patient ‘cause their safety is paramount at the end of the day … put them on 15 minute obs or whatever… aye, I would definitely communicate it and make it known and … for it to be continuity that they go on MORS and then we’re all singing from the same hymn sheet.”[69]She went on to say that she sought to reassure Nurse Higgins, who was relatively inexperienced and anxious in case she had done something wrong.[70]Ms Gibb interviewed Christopher Henderson, Security First Line Manager, on 30 July 2024 (188ff). He expressed the view that IB should have been placed on MORS, since medication was never withheld without reason.[71]She spoke to Alex Manson, another Residential Officer, on 30 July 2024 (196ff).[72]In addition, Ms Gibb spoke to Deputy Governor Finlay Begg on 27 June 2024, and emailed him to confirm the terms of that discussion (236/7). Mr Begg confirmed that he had updated some of the wording in the email with some additional information.[73]In her email, Ms Gibb sought to summarise their conversation in bullet points: “You provided that, following the DIC [Death in Custody] of IB 3546, a review of CCTV footage took place in which he appeared to be under the influence (IB can be seen staggering about/appears confused) and this together with statements from NHS staff, gave you cause for concern that IB should have been placed on MORS on 7 April. You provided that having also worked with IB outwith Shotts in the past (HMP Greenock) you do not consider his presentation in the CCTV to be usual for him. You provided that staff should remain at the hatch during medication dispensation regardless, but particularly in light of his presentation you would have expected a member of staff to stay with IB when he went to the medication hatch. It was your opinion that Nurse Higgins acted accordingly by advising SPS staff that she had withheld IB’s medication due to his presentation, initially Officer Aitken at the medication hatch and subsequently Officers Dunn, Bingham and Peden at the desk. You provided that you would have expected a MORS observation referral to be initiated by SPS staff at this point if not before.”[74]It is understood that these bullet points encapsulate the amendments made by Mr Begg.[75]Ms Gibb also had reference to the Management of an Offender at Risk due to any Substance – Policy and Guidance (the MORS Policy) dated 30 December 2014 (253).[76]It stated that “The purpose of this Policy and Guidance is to provide assurance that offenders are being appropriately managed and receiving an appropriate level of care to ensure preservation of life, and should be implemented in all cases where an offender in a Scottish prison is suspected of being at risk due to any substance.”[77]Provisions were set out in the guidance to determine what observations should be put in place for affected prisoners, which differed according to whether they were to be carried out during working hours or patrol periods or nightshift. At Appendix A of the policy (262) a form was available to be completed, including details about the prisoner’s initial presentation, and guidance to be followed thereafter.[78]Following her investigations, and having collated written information as well as the interviews, Ms Gibb produced an Investigation Report dated 27 August 2024 (76ff). She concluded (108) that there was testimony capable of both supporting and refuting the allegation, and that since it was not for her prefer one account over another, she found that there was a case to answer to allow the Adjudicating Manager to make an assessment of the evidence. She considered that the claimant’s actions could amount to a breach of the Code of Conduct.[79]Gillian Walker, the Governor in Charge of HMP Shotts, issued the claimant with a letter dated 2 September 2024 (268) inviting him to a disciplinary hearing on 19 September 2024 to consider the following allegation: “It is alleged that on Sunday 7th April 2024 between approximately 16:30 and 17:30, in Lamont Hall HMP Shotts, you failed in your duty by failing to follow procedures in the care and management of 3546 IB, inclusive of failure to effectively apply the Management of an Offender at Risk (MORS) Policy.”[80]The claimant sought the assistance of Eddie Cruse, a member of the Scottish National Committee of the POAS. He requested permission to call a number of witnesses, namely Ms Gibb, Mr Begg, Nurse Higgins and Ms Gillan (272).[81]Ms Walker offered to communicate with Ms Gillan and Nurse Higgins, but advised that she was not prepared to allow Mr Begg or Ms Gibb to attend as witnesses to the disciplinary hearing (270).[82]The disciplinary hearing took place on 19 September 2024 as scheduled. Ms Walker chaired the hearing, and was assisted by Elizabeth Connelly, HR Business Partner. The claimant attended and was accompanied by Mr Cruse. Notes of the hearing were taken, transcribed from a recording, and are an accurate record of what was said (274ff).[83]Mr Cruse, representing the claimant at the Hearing, queried the decision to classify the allegation as gross misconduct. He maintained that the claimant did not fail in his duty, and did not fail to make a decision. The allegation seemed to be that IB was not placed on MORS following “not even a conversation” with the claimant. Ms Walker clarified that the purpose of the Hearing was to determine whether the decision which the claimant had made was not the correct decision based on his knowledge of the MORS policy.[84]She went on to say that the investigation centred on gross misconduct but IB lost his life because observations were not being made; since there is no greater matter than that someone lost his life, that was why it had to be gross misconduct. Mr Cruse continued to argue that a general inquiry would have achieved the same purpose, and that the claimant had not committed an act of misconduct, but had made a genuine decision, right or wrong. He argued that it was not appropriate to hold the claimant to account on the outcome.[85]Ms Walker stated that it had been confirmed that IB did not commit suicide, but that within his system he had 3 types of drugs.[86]The CCTV footage was shown. Ms Walker asked the claimant to identify IB (who was wearing red shorts), and say if what they were viewing was IB’s normal walk. The claimant replied (282): “That’s his normal presentation ma’am, he is a heavy drug user, he gets a lot of, when I say drug user, I mean he gets a lot of medication on a daily basis. Which he has been getting for a long time. You ask any Officer in this jail if that’s his presentation and they’ll tell you it is if they have ever worked with IB.”[87]Mr Cruse added that this was his understanding too, and that IB had had a bad back, slept a great deal, came out only for meals and was very rarely seen.[88]The claimant reiterated, when asked about IB being confused, that he had been “Not confused by his surroundings or anything, I tried to explain this, he was confused as to why he was not getting his medication. Obviously, the nurse does not tell them there and then that she believes him to be under the influence. The nurse would have said to him ‘that you are not getting your medication’ and that would have been it. I know better than to ask why he is not getting his medication because we don’t get much information out of the nurses when it comes to things like that. So, when she tells me she is not giving him his medication, I am happy with that if she tells me.”[89]Ms Walker asked for footage showing IB walking in the morning, before the incident at the medication hatch, to be shown, and asked Mr Cruse (who spoke on behalf of the claimant) if he could see a difference from the footage showing him later, when he walked away from the hatch. The exchange was noted as follows: “GW: that is not the same walk as the guy who walked away from the hatch. EC: I think you are right. GW: He is not leaning over to the side, he is not stooped, he is standing relatively straight and he is not stumbling or falling over. EC: I think he is walking better there than he was later. So that’s in the morning? GW: That’s at 09:30 in the morning. EC: Yeah, I agree with that. I remember I was talking to someone, I won’t say who and they said look, look, that’s perfectly normal, that’s how he walks, and I said, well, I don’t know. I need to be careful and of over defending. I don’t think that is a normal walk, that looks a bit shuffling and staggering. It depends how they describe that. But again, what I can see this is earlier in the morning, maybe he’s brighter, maybe gets pain through the day he’s on medication, maybe he would naturally stoop if he has a bad back later on.”[90]When the claimant was asked to comment, he raised the question of what medication IB was on. He said “I am interested to see what he was given medication wise and which nurse gave it. I think your point is made, it is like two different guys, one is in the morning, and one is at night, it could be drugs, it could just be how he naturally progresses throughout the day, and he is on pain management.”[91]Later in the Hearing, Ms Walker asked the claimant about the comment made by the nurse that IB was slurring his words (297). The claimant said: “I had a conversation with him. He basically told me to fuck off and not follow him into his cell. He didn’t sound as if he was slurring his words there and as I said, the fact to me, this is my personal thing to me, he was asking questions if he was on report etc and talking to me on going behind his door first time when I told him there was no argument from me. You are not dubbing me up until have had my medication that other prisoners have done in the past there was none of that from him. He actually abided when I gave him a lawful order about behind the door he went. It was lock-up.”[92]Following the conclusion of the Hearing, Ms Walker considered the information provided to her, and issued her decision by letter dated 30 September 2024 (304).[93]She summarised the information presented in the investigation and points made on behalf of the claimant at the Hearing. She then set out her decision and the rationale for it.[94]She stated: “Having considered all factors, in my view, the weight of evidence favours the conclusion that you failed in your duty by failing to follow procedures in the care and management of 3546 IB, inclusive of failure to effectively apply the Management of an Offender at Risk (MORS) Policy. You did not place IB on MORS when concerns were raised about his presentation at the medication hatch by Nurse Higgins and despite what you observed in his presentation and demeanour thereafter you did not place him on MORS. You stated you considered IB’s demeanour on the 7th April 2024 between 1630 hours and 1730 hours as ‘normal’ and that you did not place him on MORS as you did not consider him to be at risk. However, as was viewed on CCTV, the evidence shows that at different points throughout the day, specifically at 0930 hours and 1605 hours, IB was walking without issue towards the medication hatch and within the section, whereas at 1630 hours he appeared to be staggering, stooping and leaning over to the left. At Disciplinary Interview when shown the CCTV you acknowledged this difference in presentation. I do not accept your mitigation that IB’s demeanour was normal and that it could change throughout the day due medication for his back condition. In my view the CCTV at 1630 hours shows IB presenting under the influence yet despite this you took no action to place him on MORS… Your representative doubted that Nurse Higgins had advised yourself and your colleagues that she had refused IB’s medication and reasons for this and that she had lied under questioning. I do not agree with this position. There is no evidence to suggest Nurse Higgins at interview was not telling the truth. Whilst CCTV does not capture sound and the conversation between and her cannot be heard, it is clear that you have a conversation and then observe IB acting in a way that you and a colleague considered ‘confused’. Your representative highlighted that it is the role of a Prison Officer to make the correct decision based on their assessment as to whether a prisoner should be placed on MORS and that as Governor in Charge, I empower staff to do so. I expect staff to make the appropriate and correct decision based on what is presented to them at that point in time. You are an experienced Prison Officer and confirmed that you had placed prisoners on MORS many times in the past when you have considered them to be at risk. I cannot accept based on your mitigation and in considering answers to the questions I posed, and CCTV evidence reviewed that you took the correct decision on the 7th April 2024. I consider you took the wrong decision not to place him on MORS which may have contributed to IB’s losing his life.”[95]She went on to conclude her letter under the heading “Summary”: “After full and careful deliberation, I consider the allegation of gross misconduct charge against you is well founded and that on the balance of probability, you were aware that IB was under the influence both from what Nurse Higgins told you but also from your own observations regarding his presentation but that you chose not to place IB on MORS when in fact based on the evidence outlined, it was clear that he was at risk and should have been placed on MORS. My findings are that your actions and behaviour in relation to the incident on 7th April 2024 were contrary to the SPS Code of Conduct, specifically Section 12. Section 12.1 General Advice states ‘Gross Misconduct is regarded by the SPS as any conduct, unacceptable behaviour, breach of the rules or fundamental breach of contract, which if substantiated, is so serious it would likely result in summary dismissal. Summary dismissal means dismissal without paid notice or pay in lieu of notice’. Taking everything into consideration, I have therefore concluded that, in my view, your actions fell significantly short of the behaviours and standards expected of a serving Prison Officer. I find this unacceptable and as such your actions have breached SPS Code of Conduct and SPS Professional Charter. I considered the range of disposals available to me as an outcome to this case from the Code of Conduct Policy. For the reasons outlined in this letter and more specifically the seriousness of the allegation, I have determined your dismissal from SPS employment as the only appropriate outcome available to me as a disposal. You will be summarily dismissed from employment in SPS with immediate effect as of the date of this decision letter.”[96]She went on to advise the claimant of his right to appeal against this decision within 5 working days.[97]The claimant did exercise his right of appeal, submitting grounds of appeal through his representative Mr Cruse (311). He argued that no singular misconduct or gross misconduct had been cited; that the inappropriate communication between the Deputy Governor and CIU Investigator inhibited a comprehensive fully researched examination of the circumstances; that the evaluation of the CCTV evidence was subjective; that “the adjudicators outcome provides nothing more than a contradiction of irrefutable facts amounting to an insubstantial rebuttal of disagreement and contradiction”; that while the decision-making may have been based on a genuine belief, the directing mind in the matter was flawed, prejudiced and hostile to objectivity; and that the MORS policy would be challenged.[98]On 7 November 2024, the claimant was invited by Sandra Henry, Employee Absence, Conduct and Health Case Manager, to attend an appeal hearing on 27 November 2024 (313).[99]Lengthy appeal submissions were presented by the claimant’s solicitors to the Internal Dismissal Appeal Board (IDAB)(314ff).[100]The appeal hearing took place on 27 November 2024, before a panel comprising Jane Hughes, HR Business Partner, HMP Perth; Paula Arnold, Governor in Charge, HMP YOI Stirling and Gerald Michie, Governor in Charge, HMP YOI Polmont. Notes were taken by Rhegan Jack, EACH Case Manager. The claimant attended and was represented by Carl Harrington, solicitor (who also appeared before us on the claimant’s behalf). Mr Cruse gave evidence on the claimant’s behalf.[101]The notes were transcribed from a recording of the Hearing (325ff).[102]The CCTV footage was viewed by the IDAB both during the Hearing and after it.[103]Mr Harrington made submissions on behalf of the claimant, in which he supported the written submissions made in relation to the appeal.[104]Following the Hearing, Ms Hughes, the chair of the panel, wrote to the claimant to confirm the decision of the panel (359) on 3 December 2024.[105]She sought to address the various points in the appeal and presented by Mr Harrington.[106]The panel felt that the allegation was specific in that it identified a failure to follow the MORS policy; given the loss of life, the panel agreed that it would be a serious breach of an SPS policy.[107]The panel agreed with the Governor, Ms Walker, that individual staff must be held accountable for their actions, particularly when this may have led to IB losing his life.[108]The panel acknowledged the frustration on the claimant’s behalf on the basis that he was unable to challenge Nurse Higgins about the changes to her statements. They explained that as an NHS employee, and not SPS, they could not require her to attend a disciplinary hearing. They found that even though the wording did change, it was clear that the nurse had indicated to the claimant that IB would not be given his medication due to concerns about his presentation.[109]They did not consider that interviewing the night shift staff would have been of any assistance as IB was not placed on MORS and therefore checks were not in place.[110]The panel considered that any perceptions presented by the Deputy Governor, Mr Begg, did not have a bearing on the investigation or outcome, and that the claimant had had sufficient opportunity to present his version of events.[111]While the panel accepted that the investigator could have asked more neutral questions, this did not affect the outcome and the claimant had been given the opportunity to present his side of the case.[112]The panel considered that the decision to dismiss the claimant was the appropriate one, and felt that it was more likely than not that the claimant had had some form of communication with Nurse Higgins when he had approached the hatch after IB had been refused medication. He remained at the hatch for around 25 seconds on the CCTV footage.[113]The panel noted the claimant’s concern that no Officer was present at the hatch when IB went to obtain his medication. They rejected his assertion that the MORS policy was not fit for purpose, and asserted that while there was no training on the policy, it relied upon the exercise of an Officer’s skills. He never suggested that he had raised previous concerns with regard to the policy.[114]The panel declined to consider other cases of comparable treatment on the grounds that data protection rules prevented them from doing so, but found that Ms Walker had taken her decision on the basis of the rules within the Code of Conduct.[115]The panel considered that while the claimant had long and unblemished service, the actions he had taken on the day were significantly short of a serving Prison Officer.[116]The panel affirmed that as an SPS employee, the claimant was required to have standards of conduct which were “significantly higher” than in other employment relationships, and that he had undermined the truth and confidence expected of him as an employee.[117]They concluded: “Taking all of your points and mitigation into account, the panel are in agreement with the decision to dismiss. We would remind you that the lack of action may have contributed to the loss of life of IB. the panel felt that during the appeal, there was little remorse presented for this or the effect on IB’s family.”[118]The appeal process was thereby concluded.[119]Following his dismissal, the claimant registered with an employment agency, Indeed. He made 28 different applications (377ff).[120]The claimant was successful in obtaining new employment at the Cairn Hotel, Blackburn, from the start of June 2025, though his first shift was not offered until 14 or 15 June. He is employed under a permanent contract, working 33 hours a week at £12.21 per hour.[121]He did not claim any state benefits following his dismissal by the respondent. Submissions[122]Both parties tendered detailed written submissions, which have been taken into full consideration by the Tribunal in reaching its decision. Where appropriate, reference is made below to those submissions, but no summary of the submissions is provided here.The relevant law
[123]In an unfair dismissal case, where the reason for dismissal is said to be conduct, it is necessary for the Tribunal to have regard to the statutory provisions of section 98 of ERA. The Tribunal considered the requirements of section 98(1) of the Employment Rights Act 1996 (“ERA”), which sets out the need to establish the reason for the dismissal; section 98(2) of ERA, which sets out the potentially fair reasons for dismissal; and section 98(4) of ERA, which sets out the general test of fairness as expressed as follows: “Where the employer has fulfilled the requirements of sub-section (1), the determination of the question whether the dismissal was fair or unfair (having regard to the reason shown by the employer) –(a) depends on whether in the circumstances (including the size and administrative resources of the employers undertaking), the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee and(b) shall be determined in accordance with the equity and substantial merits of the case.”[124]The Tribunal also referred to section 123(6) of ERA, which provides that “Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.”[125]Further, in determining the issues before it the Tribunal had regard to, in particular, the cases of British Home Stores Ltd v Burchell [1978] IRLR 379 and Iceland Frozen Foods v Jones [1982] IRLR 439. These well known cases set out the tests to be applied by Tribunals in considering cases of alleged misconduct.[126]Burchell reminds Tribunals that they should approach the requirements of section 98(4) by considering whether there was evidence before it about three distinct matters. Firstly was it established, as a fact, that the employer had a belief in the claimant’s conduct? Secondly, was it established that the employer had in its mind reasonable grounds upon which to sustain that belief? Finally, that at the stage at which that belief was formed on those grounds, was it established that the employer had carried out as much investigation into the matter as was reasonable in all the circumstances of the case?[127]The case of Quadrant Catering Ltd v Ms B Smith UKEAT/0362/10/RN reminds the Tribunal that it is for the employer to satisfy the Tribunal as to the potentially fair reason for dismissal, and he does that by satisfying the Tribunal that he has a genuine belief in the misconduct alleged. Peter Clark J goes on to state that “the further questions as to whether he had reasonable grounds for that belief based on a reasonable investigation, going to the fairness question under section 98(4) of the Employment Rights Act 1996, are to be answered by the Tribunal in circumstances where there is no burden of proof placed on either party.”[128]The Tribunal reminded itself, therefore, that in establishing whether the Respondents had reasonable grounds for their genuine belief, following a reasonable investigation, the burden of proof is neutral.[129]Reference having been made to the Iceland Frozen Foods Ltd decision, it is appropriate to refer to the well-known passage from that case in the judgment of Browne-Wilkinson J: 'Since the present state of the law can only be found by going through a number of different authorities, it may be convenient if we should seek to summarise the present law. We consider that the authorities establish that in law the correct approach for the industrial tribunal to adopt in answering the question posed by S.57(3) of the 1978 Act is as follows:(1) the starting point should always be the words of S.57(3) themselves;(2) in applying the section an industrial tribunal must consider the reasonableness of the employer's conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair;(3) in judging the reasonableness of the employer's conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;(4) in many (though not all) cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another;(5) the function of the industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair.' Discussion and decision[130]The first task for the Tribunal in an unfair dismissal claim is to determine the reason for the dismissal. In this case, the reason given by the respondent was that of conduct, namely that the claimant committed an act of gross misconduct, in breach of the respondent’s Code of Conduct, by failing to place IB, a prisoner, on MORS on 7 April 2024.[131]Conduct is one of the potentially fair reasons for dismissal under the ERA.[132]Next, the Tribunal must consider whether or not the respondent had a genuine belief that the claimant was guilty of the misconduct alleged. The claimant argues that the respondent did not have a genuine belief that the alleged misconduct warranted dismissal, because it did not dismiss three other prison officers who faced the same allegations.[133]Essentially, the claimant maintains that Officers Peden, Dunn and Bingham were given the same or very similar information to that which the claimant possessed about the withholding of IB’s medication from him on 7 April 2024, and that since none of them took action to place IB on MORS, they should have been dismissed. However, because the respondent did not dismiss them, the claimant argues that the respondent, and in particular Ms Walker, did not have a genuine belief that the claimant was guilty of gross misconduct.[134]In my judgment, while the issue of consistency may arise in this case, it does not affect the question of whether or not the respondent had a genuine belief in the claimant’s guilt.[135]Ms Walker was a credible and reliable witness, whose evidence I was readily prepared to accept as honest, and in my judgment, she conveyed an entirely genuine belief that the claimant had acted in such a way as to amount to gross misconduct. She was very clear in her evidence that she considered the claimant’s actions to have fallen far short of the standard expected of a prison officer in his position faced with the issues presented by IB on the date in question.[136]That there may have been others, as the claimant suggests, who should have been considered to have been in the same position, does not undermine the sincerity of Ms Walker’s view that the claimant was responsible for a failure to apply the MORS policy, and was thus guilty of gross misconduct. It may be a question in relation to the fairness or proportionality of dismissing one individual when others were in the same position, and that is a matter which is addressed below.[137]However, it is my conclusion that the respondent has demonstrated that they had a genuine belief that the claimant was guilty of gross misconduct by failing to place IB on MORS.[138]The next question is whether or not the respondent had reasonable grounds upon which to base that genuine belief, and whether the respondent followed a reasonable investigation in reaching that belief.[139]I address the claimant’s criticisms of the respondent’s investigations first.[140]The claimant complained that the investigation was inadequate on a number of grounds, in submission and in cross examination, and I have sought to identify and address each one in turn (which may not identically reflect the order in which the parties dealt with them in submission, but covers the different points).[141]Firstly, he complained that the respondent had not sought copies of the medical records of IB, nor a copy of the post mortem of the prisoner; secondly, he complained that the respondent had failed to obtain the view of a medical expert about IB’s presentation.[142]It is important to note that the Tribunal’s role is not to identify or imagine any number of steps which might have been taken by the respondent in carrying out an investigation, but to consider, primarily, what the respondent actually did. Of course, it may be that in examining what a respondent has done, it become obvious that there were steps which were omitted, and therefore which rendered the investigation not to be reasonable.[143]Ms Walker confirmed, under cross-examination, that she was aware that there were three different drugs known to have been in the claimant’s system when he died. This must have been information either provided by the post mortem report, or by someone who had read the report. Mr Harrington was very critical of the respondent’s failure to obtain and produce medical records and post mortem report, particularly given that these documents may have provided information about the effect of the drugs upon him, when he had received them and where from, and what impact these drugs had upon him when he was due to received prescription medication.[144]In my judgment, the respondent justifiably focused upon the actions of the claimant himself, and upon the information which was available to him when he had close dealings with IB on 7 April 2024. Clearly, the claimant, on the evidence, has never seen nor had access to the medical records nor the post mortem report. Ms Walker accepted in evidence that the fact that IB had died was a factor in the investigation, but not the primary focus of the investigation.[145]It is therefore my view that the respondent’s decision not to consult the medical records nor the post mortem report did not render the investigation unreasonable.[146]The claimant’s second complaint was that the respondent did not seek an independent expert’s view about IB’s presentation. It is not clear what kind of independent expert would have been in a position to give a view as to IB’s presentation, nor would it have added to the respondent’s investigation to have done so. The critical question for the respondent was what an experienced prison officer such as the claimant should have seen and done on that day, not what an expert – perhaps a medical expert – might have said about IB’s presentation when viewing CCTV footage. Such evidence runs the risk of unfairness to the claimant, since he is not a qualified medical expert and could not be expected to interpret medical signs in the same way as a qualified practitioner.[147]In any event, it was reasonable for the respondent to consider this to be primarily an issue of fact, for determination on the basis of the evidence available on the day.[148]The fourth criticism of the investigation was that there was insufficient consideration of the credibility of Nurse Higgins. In my judgment, there is no basis in this criticism. Ms Walker was aware of the inconsistency apparent between the two statements made by Nurse Higgins, but did not take the view that this affected her credibility. This is a matter which is more properly addressed in determining whether or not there were reasonable grounds for the respondent’s belief, but in my judgment, this does not render the investigation unreasonable.[149]The fifth criticism related to the fact that none of the night shift staff were interviewed about how the claimant presented overnight. Ms Walker’s position was that they would not have had any reason to disturb the prisoner by entering his cell overnight, and since he had not been placed on MORS there was no obligation upon them to check his condition. In my view, this was not an unreasonable position to take.[150]The sixth criticism was that there was an allegation of bias against Finlay Begg, for his email intervention on 235 to 237, in which the prisoner was discussed. The claimant maintains that the conversation between Ms Gibb and Mr Begg was untested and therefore “not proper evidence”. At 269 to 273, there was an exchange between Mr Cruse and the respondent’s HR in which the claimant’s request to call Mr Begg as a witness was refused.[151]The email by Mr Begg expresses some views on the condition of IB, having reviewed the CCTV footage. However, Ms Walker’s evidence was that this did not affect the outcome, nor did she take it into account. In my judgment, it was not unreasonable for the respondent not to have Mr Begg called as a witness in these proceedings, since he was plainly only viewing what he could see and his views would not add to the decisions to be made by Ms Walker. He was not a witness to fact, and Ms Walker was available to speak about the effect of this email upon her, which she was able to do.[152]Reference has been made to an allegation of bias, but it is not clear to me against whom the bias is alleged, whether Mr Begg, Ms Gibb or Ms Walker.[153]The seventh criticism related to whether the MORS policy was “fit for purpose”. Mr Harrington raised this matter in cross-examination with the respondent’s witnesses. It is simply not within the jurisdiction of this Tribunal to make such a broad determination, on the evidence which is before me. It appears to me that this is a question for any Fatal Accident Inquiry which may be convened to inquire into IB’s death, in order to identify potential causes or contributory factors.[154]Ms Walker’s position on this was justified: she considered that the policy was clear and straightforward in its terms, and had been agreed between management and staff side representatives; further, it is clear that the claimant had placed prisoners on MORS on a number of previous occasions, and indeed on that day itself, and so understood its terms and relevance.[155]The eighth criticism was that insufficient weight was attached to the claimant’s own statement. In my view, that is not a criticism of the reasonableness of the investigation, but of the conclusions reached by the respondent. In other words, this goes to whether or not they took sufficient account of the claimant’s statement in concluding that they had reasonable grounds to believe that he had committed gross misconduct.[156]The ninth criticism made is that Ms Walker placed significant weight upon a quote from Mr Peden that IB had been more confused than normal on the day in question. Again, in my judgment, that goes to the substance of the findings rather than the reasonableness of the investigation.[157]The tenth criticism is that the respondent “trivialised the drug pass”. In fact, on the evidence, it appears to me that Mr Cruse was strongly insisting that drugs had been passed, on a viewing of the CCTV at a point after IB had been refused his prescription medication, by being thrown into IB’s cell by another prisoner. It was presented as a matter of fact. On the other hand, the respondent did not place any weight upon this assertion. Again, this appears to me to go to substance of reasonableness rather than investigation, but to the extent that it may be said to affect the reasonableness of the investigation, it is my conclusion that it cannot be said on the balance of the probabilities that the CCTV footage shows that drugs were passed to IB in this way.[158]On a matter such as this, the Tribunal requires to consider what is said by those who were present or who have experience of the circumstances. There was, on the evidence, no direct statement made by any member of staff that they had seen drugs being passed to the prisoner at that point.[159]The issue, in any event, was whether or not IB was demonstrating signs of having been under the influence prior to this, and it is upon that evidence that the respondent proceeded.[160]Accordingly, it is my judgment that the criticisms of the investigation made by the claimant do not render the investigation unreasonable.[161]Further, I take into consideration that the respondent appointed an experienced investigator to carry out inquiries; that she spoke and had access to statements from staff who were on duty at the relevant time; that she followed up those statements, particularly with Nurse Higgins; that the claimant was given copies of all relevant statements in advance of the disciplinary hearing, and the appeal hearing; that the claimant was given the right to be represented, and was represented, at both hearings; that he was able to put forward a robust defence in both hearings, especially with the assistance of his solicitor, an experienced and highly articulate employment lawyer, at the appeal hearing; and after each hearing, a clearly reasoned decision was issued to the claimant.[162]It is my judgment, therefore, that the respondent carried out a reasonable investigation into these matters. It is important not to hold the respondent to a quasi-judicial standard. The Tribunal must consider whether the investigation was such that it feel within the band of reasonable investigations carried out by a reasonable employer. In my judgment, it did.[163]I then turned to the highly disputed question of whether or not the respondent had reasonable grounds upon which to conclude that the claimant had been guilty of the gross misconduct of which he was charged.[164]The central issue before the respondent in determining the disciplinary case was whether the claimant’s actions amounted to gross misconduct, on the basis that he had failed to comply with the MORS policy. The Code of Conduct provides, at paragraph 8.0, a number of types of offences which are examples of unacceptable conduct, which may lead to disciplinary action, including (55) “breach of SPS’s policies, procedures, staff notices or other workplace rules or procedures in force from time to time.”[165]The MORS Policy and Guidance sets out, at paragraph 5 (254) the purpose of the guidance, which was to “provide assurance that offenders are being appropriately managed and receiving an appropriate level of care to ensure preservation of life.”[166]A prisoner may be found to be at risk due to the concealment or ingestion of any substance, or the risk that they had concealed or ingested such substances. A prison officer would then complete an Observation Referral form, and notify healthcare staff, who would assess the individual and devise a care plan, defining how often observations should be carried out.[167]In my judgment, a failure under this policy, given the serious nature and possible consequences of that failure, is legitimately regarded by the respondent as a serious act of misconduct. It was not argued by the claimant that this should have been treated as a capability issue, though he did argue, strongly, that he was making a decision based on observations and could not be treated as having committed an act of gross misconduct as a result. In my view, it was reasonable for the respondent, with the heavy responsibility of caring for prisoners in the prison environment, to expect that the claimant would act in line with the terms of the policy and guidance under MORS.[168]It is then necessary to determine whether the claimant acted in breach of the MORS policy by failing to take action to place IB on MORS once he had seen him leaving the medication hatch.[169]The respondent’s position is that there were a number of factors which made it essential for the claimant to have taken the decision to place the prisoner on MORS at that point: The nurse dispensing medication on the afternoon of 7 April 2024 declined to give IB his medication, as she believed him to be under the influence of drugs; The nurse, Nurse Higgins, told the claimant that she had declined to give IB his medication, and that the reason for this was that she suspected him to be under the influence of another substance; The claimant observed the confusion of IB when he headed for the wrong section after he had been at the hatch; The claimant described the claimant as “confused”, though relating to whether or not he was on report, rather than as to his whereabouts or general understanding; The claimant accepted that the presentation of the claimant was different, on CCTV, in the late afternoon from that observed earlier in the day; On CCTV, the claimant’s gait was unsteady and he did not appear to be in complete control of his movements; Placing a prisoner on MORS is not a decision by a prison officer that something is definitely wrong, but a necessary decision based on a reasonable suspicion that the prisoner is under the influence of drugs, which may have an unknown impact upon him; The CCTV footage showed that the claimant had a conversation with Nurse Higgins at the medication hatch after he had escorted the prisoner back to his cell, suggesting (though not confirming) that he had some concerns about the withholding of medication; Other prison officers stated that if they had been told by a nurse that medication was being withheld, they would have placed the prisoner on MORS (Bingham and Dunn); IB had a history of positive drug tests and MORS observations, of which the claimant was aware; The claimant had experience of the MORS policy, and had been involved in placing prisoners under its observations, including one on that same day, and therefore understood how to operate it and in what circumstances. IB was found dead in his cell the following morning, with a number of substances present in his system.[170]It is also important, however, to consider the position of the claimant in relation to these matters, in order to have a rounded view of the information which was available to the respondent in taking these decisions.[171]The claimant’s position was that it was not necessary or appropriate for him to have placed the prisoner on MORS at that particular time on the afternoon of 7 April 2024 because of the following: The claimant did not know why IB’s medication was withheld; nurses do not disclose such information to prison officers; The claimant denied that Nurse Higgins had told him that she suspected that the prisoner was under the influence of drugs; The prisoner’s presentation was nothing unusual on that date, because he had a long-term back condition which caused him to have a characteristic shuffling gait; the claimant emphasized that he had known IB for a number of years and felt that there was no indication that he was under the influence of drugs when he saw him that afternoon; The claimant maintained that IB was confused, but not in the manner inferred by the respondent; he was confused as to why his medication was being withheld, and whether he was in some sort of trouble, but not as to his whereabout or his environment; The claimant was consistent in his evidence both to the investigation and to Ms Walker, and should have been trusted, as an experienced and trusted officer without any blemish on his record over 33 years; By contrast with the claimant, Ms Walker specifically found that other officers had not been honest and consistent in their evidence, for example in stating that Nurse Higgins had not told them that medication had been withheld from IB or why; however, she still believed them when they said that if they had been told that medication had been withheld, they would automatically have placed the prisoner on MORS; Nurse Higgins’s statements changed, and this should have been taken to undermine her credibility. Again, however, Ms Walker chose to believe Nurse Higgins rather than the claimant, instead of investigating why the nurse may have felt it appropriate to lie in order to protect herself. Further the fact that Nurse Higgins refused to attend as a witness at the disciplinary hearing should have been taken into account. Ms Walker should not have placed any weight on the statement by Mr Peden that IB had been more confused than normal. This did not show that the prisoner was disorientated but that he did not know why he was being refused medication. The respondent trivialised the drugs pass which was, according to the claimant, shown in the CCTV footage, when a prisoner was observed to have thrown something into his cell. Ms Walker’s position was that this did not make any difference, but in the claimant’s view, this could have been very significant in the sequence of events which led to the prisoner’s death. If the prisoner had taken drugs after the claimant had observed him, which then led to his death, the claimant could not be held responsible for this. The MORS policy is very limited and not fit for purpose, and gives no warning at all that any failure to follow it amounts to gross misconduct. The policy expects a prison officer to make a judgement call without providing any guidance as to how that call is to be made.[172]The Tribunal must not act as if it were the employer, nor is it appropriate to substitute its own view for that of the employer. The question is not whether or not the claimant has been proved to the Tribunal to have been guilty, but whether or not the respondent had reasonable grounds upon which to reach that conclusion.[173]A central issue was whether or not the respondent should have believed the evidence of Nurse Higgins in contrast to that of the claimant. The claimant suggested that Nurse Higgins’ evidence changed between what she said to Alexander Manson, (198), her initial statement (213) and her interview with Sarah Gibb (168), and that Ms Walker did not analyse or criticise this.[174]My conclusion is that while Ms Higgins did not attend at the disciplinary hearing (and it is not clear why she did not, and she could not be compelled to do so as she is an NHS rather than an SPS employee) it is important to consider that her evidence was consistent as to why she had withheld IB’s medication (that she believed him to be under the influence of drugs) and that she told the claimant both about withholding the medication and why she had done so.[175]The claimant’s position was that she told him that she had withheld the medication but not why. I accept Ms Walker’s view of this as being unreliable, since he went back to the medication hatch to speak to the nurse, and had a short conversation with her. There would be no reason for him to have returned to the hatch if, as he insisted, the nurse would not tell him why she had withheld the medication. He already knew that IB had had his medication withheld, so the only conceivable reason was to find out why this had happened. Nurse Higgins’ position was that she told him her concerns.[176]In my judgment, the respondent had reasonable grounds to conclude that the claimant was not only aware that the prisoner had had his medication withheld, but that the reason for this was that the nurse had concerns that he may be under the influence of drugs.[177]Further, the claimant’s denials that there was anything unusual about the prisoner’s presentation were undermined by his acceptance that there was a clear distinction between what could be seen in the morning and then in the later afternoon.[178]The respondent concluded that the claimant should have been aware that there was a risk that the prisoner was under the influence of drugs. The very fact that he had been refused his medication by Nurse Higgins was an indication that something was wrong, and they had reasonable grounds to accept the evidence of Nurse Higgins over that of the claimant.[179]The criticisms directed at the MORS policy by the claimant and his representative may have some force, in that the guidance is fairly general in its terms. However, the claimant was familiar with the policy, had been accustomed to applying it to prisoners in the hall, was aware that the claimant had a history of drug use and had been subject to MORS on more than one occasion before and, perhaps most significantly, was aware that the policy requires the prison officer to act on the basis of risk observed. The respondent took the view that the claimant, as a highly experienced prison officer, should have identified the risk of harm to the prisoner when he was told that the medication was withheld, and should then have taken the appropriate action to place the prisoner on MORS.[180]The evidence of the CCTV footage was not determinative, but in my judgment the respondent was entitled to conclude that it showed that the prisoner was much less steady in his presentation in the late afternoon, and that that should have raised a suspicion, combined with the nurse’s assessment, that something was wrong with the prisoner, leading to the MORS policy being engaged.[181]Accordingly, I have come to the conclusion that the respondent did have reasonable grounds upon which to conclude that the claimant failed in his duty to take account of the facts available to him at the time, and thereby failed to comply with the MORS policy by not acting upon that information so as to protect the prisoner, and potentially prevent a life-threatening situation coming about.[182]Finally, then, the Tribunal has to consider whether or not dismissal was an appropriate sanction, that is, whether it was a sanction which fell within the range of reasonable responses open to a reasonable employer in the circumstances. Once again, I remind myself that it is not for me to impose my own opinion on the circumstances, nor to substitute my view for that of the employer, but to determine the matter as above.[183]The claimant’s position here is that it was disproportionate to have dismissed him, given that what he did merely amounted to a decision to be made, as with many others, about a prisoner under his care, and that it did not properly amount to gross misconduct; further, he considered that his length of excellent and unblemished service should have led the respondent not to dismiss him. In addition, he argued that others should have been dismissed for, in effect, lying about their involvement and failing to take the action which he was criticised for not having taken.[184]In my judgment, as I have found above, it was reasonable for the respondent to find that the claimant was guilty of gross misconduct, by reason of his breach of the MORS policy in circumstances where serious consequences could have arisen. That this was part of a regular decision making process is clear from the evidence, but the claimant’s responsibility for the decisions he took cannot be left out of consideration. It is not the Tribunal’s function to find that his decisions led to the prisoner’s death, nor did the respondent find this, but given that the purpose of the MORS policy is to avert risk to prisoners who are known or believed to be at risk, the failure to take action in this case must be considered to be a serious matter.[185]Ms Walker did take account of the claimant’s length of service, but regarded the failure to apply the policy as so serious as to require the most serious sanction. She considered that the claimant did not demonstrate any remorse and may not act differently when presented with similar circumstances. In my judgment, it was not surprising that the claimant did not demonstrate remorse, as he made it clear throughout that he did not believe that he had done anything wrong, and that he felt that the policy was unclear in its application. Ms Walker’s view was taken from the perspective of the Governor in Charge of HMP Shotts, and was not outwith the range of reasonable responses open to a reasonable employer. The considerations for her include a concern for the safety and security of prisoners in the prison, and her perspective is important in determining this aspect of the case.[186]The claimant also argued that he was treated inconsistently from Dunn, Peden and Bingham, who all knew or were told that the prisoner had had his medication refused, and who were believed by Ms Walker to have lied in the investigation about what Nurse Higgins had told them.[187]As Ms Armstrong pointed out in her subimssions, it is well settled primarily from Hadjioannou v Coral Casinos Ltd [1981] IRLR 352 (EAT)) that an employer’s decision not to dismiss employees for the same misconduct as the claimant’s would only make a dismissal unfair in two types of case.[188]Firstly where the employer has previously treated similar behaviour less seriously so that the claimant could be taken to have understood that such conduct would not be treated as worthy of dismissal, or it can be inferred that the employer’s reason for dismissal was not the real reason.[189]There was no evidence presented to the Tribunal that the employer had previously treated similar behaviour less seriously; and in my judgment, there is no basis to suggest that the reason for dismissal here was not the real reason.[190]Secondly, where employees in truly parallel circumstances arising from the same incident are treated differently.[191]The respondent also helpfully referred to the cases of Securicor Ltd v Smith [1989] IRLR 356 and Epstein v Royal Borough of Windsor and Maidenhead UKEAT/0250/07.[192]In my judgment, the circumstances of the claimant and the other officers were not truly parallel. The claimant was the primary officer dealing with IB on the afternoon of 7 April 2024 (understanding, of course, that he had other prisoners to look after), and was told, specifically and individually, by Nurse Higgins that medication had been withheld from IB. The other officers denied this level of knowledge. In addition, he had a personal conversation with the nurse, and was the officer who guided IB back to his cell. The other officers happened to be at the desk while this occurred, but none of them had the same focus on IB as the claimant at the time, and none was taking such a close interest in him and the events at the hatch.[193]Mr Bingham’s involvement in the final check of the cells did not, in my view, rise to the level of responsibility held by the claimant for IB, and in any event it is not clear whether there was anything which would or could have led him to intervene at that stage.[194]Further, it is clear from the claimant’s evidence that he was familiar with IB over a period of some years, and that the others were not so familiar with him.[195]In my judgment, the actions or failures of the others cannot be said to be truly parallel to that of the claimant, and accordingly, I do not consider that his treatment was so inconsistent with theirs as to render the dismissal unfair.[196]Accordingly, it is my conclusion that the decision to dismiss was within the range of reasonable responses, and therefore that the decision to dismiss the claimant was a fair one. It should not be read into this that I do not have sympathy for an employee such as the claimant who has lost his job after many years of good service, nor that I would necessarily have taken the same decision myself. However, I must not step into the shoes of the respondent and anticipate what decision I would have taken in the same situation. It is sufficient, in my judgment, that I have found that the dismissal was within the range of responses open to a reasonable employer. Some employers may have taken the view that dismissal was too severe a sanction, and others may have dismissed. The respondent acted within that band, in my view.[197]The claimant’s claim of unfair dismissal fails, and is dismissed.[198]I am indebted to both parties for the highly professional and cooperative manner in which they both presented their cases, which were of great assistance to the Tribunal.