Scottish Prison Officers' Unfair Dismissal Claims Fail at Employment Appeal Tribunal
The Employment Appeal Tribunal has rejected unfair dismissal claims from two former Scottish Prison Service officers, upholding the original tribunal's decision.
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Prison Officers Lose Appeal Over Unfair Dismissal Claims
Two former prisoner management officers for the Scottish Prison Service (SPS) have lost their appeal against an Employment Tribunal decision that dismissed their claims for unfair dismissal. Martin Andrew and Fraser Kerr were summarily dismissed in March 2023 following an investigation into allegations of using inappropriate force on a prisoner.
Background to the Dismissal
The original Employment Tribunal, held in Glasgow in March 2024, unanimously dismissed Mr. Andrew and Mr. Kerr’s claims. The officers subsequently appealed, arguing that the tribunal had erred in law by asking the wrong legal question and by making certain findings of fact that led to a failure to properly consider the reasonableness of the employer’s investigation.
Key Arguments of the Appeal
The appellants argued that the SPS did not meet the requirements of the established British Home Stores Ltd v Burchell test, specifically regarding reasonable grounds for believing misconduct occurred and carrying out a reasonable investigation. They contended the tribunal erred by not considering matters outside of the internal disciplinary proceedings, thus restricting its assessment of the investigation's reasonableness.
Specifically, the appellants questioned why the SPS failed to obtain a medical report for the injured prisoner, consider the possibility of intoxication influencing the prisoner's recollection, or examine potential motives for the prisoner to lie. They also raised concerns about insufficient training on the completion of Use of Force forms.
The Employment Appeal Tribunal's Decision
The Honourable Lord Colbeck, presiding over the Employment Appeal Tribunal, rejected the appeal. The Tribunal held that the original Employment Tribunal did not err in concluding that matters not raised during the internal disciplinary proceedings could not be material to assessing the reasonableness of the dismissal decision.
The EAT emphasised the importance of assessing the investigation as a whole, highlighting that while employers must consider employee defences, the extent of inquiry required to satisfy the Burchell test depends on the specific circumstances.
The Tribunal found that the Employment Tribunal had given careful consideration to the circumstances of the investigation and correctly concluded that it fell within a reasonable band of responses.
No Error of Law Found
Ultimately, the Employment Appeal Tribunal found no error of law in the Employment Tribunal’s original judgment. The appeal was therefore dismissed.
Read the entire judgement here: Martin Andrew and Fraser Kerr v The Scottish Ministers [2025] EAT 117
