Case of the week: DA v Strathclyde Joint Police Board

DA v Strathclyde Joint Police Board

FACTS

The claimant (AC) was employed by the Strathclyde Joint Police Board as a police training officer, having previously been a police officer.

In 2005, AC’s twin brother (MC) was convicted of serious sex offences, as a result of which MC was put on the sex offenders register and put under notification obligations regarding any intention to leave the UK. On 18 October 2005, MC left the UK without notifying the authorities and a warrant was issued for his arrest.

AC knew that the arrest warrant had been issued. AC received information about MC’s whereabouts, which he withheld from the police until April 2008, when he informed the police that he believed MC was in Canada.

MC was arrested, while AC was suspended and dismissed for gross misconduct regarding his failure to volunteer information to the police about MC’s location.

AC brought a claim for unfair dismissal.

DECISION

In the tribunal proceedings, the board conceded that AC was under no legal or contractual obligation to assist the police, on the basis that AC was employed by the board as a civilian employee and not by the police.

The tribunal held that AC’s lack of cooperation was with Strathclyde Police and took place outside the workplace. The tribunal found that the dismissal was unfair and ordered reinstatement.

On appeal, the Employment Appeal Tribunal allowed the board to withdraw the concession regarding AC’s relationship with the police: on a legal analysis of AC’s position and the statutory status of the board, he was employed by the chief constable of Strathclyde Police and owed contractual duties. The EAT criticised the tribunal for failing to clarify this status and held that AC had been guilty of gross misconduct.

Also on appeal, the Court of Session held that, having allowed the board to withdraw its concession, the EAT should have remitted the case back to the tribunal, as the withdrawal of the concession meant that the case took on a very different character involving new issues of fact and law for the tribunal to resolve.

The Court of Session allowed the appeal and remitted the case back to the tribunal for rehearing without the board’s concession. However, the court awarded costs to AC on the basis that the implications of the concession made at the tribunal and the nature of AC’s obligations under his contract of employment should have been within the board’s knowledge.

IMPLICATIONS

It will generally be rare for a represented party to be permitted to withdraw a concession made on its behalf during the proceedings when bringing an appeal. Where the determination of a new point would require a further hearing with fresh evidence, and there are no exceptional circumstances to justify it being argued, the EAT is likely to refuse to hear it.

However, in this case, the Court of Session considered that there were exceptional circumstances. It considered that the case was “clearly somewhat special on its facts and might be said to raise some important considerations of public interest”.

Ben Gorner, partner, DLA Piper