Tribunal backs SBC over sacking

Scottish Borders Council was justified in sacking a £50,000-a-year senior manager who used local authority equipment to operate a sideline as an agent for a sportswear firm.

That is the conclusion of an employment tribunal which rejected an application from Hugh Kinsella who claimed he had been unfairly dismissed.

Mr Kinsella, the risk, wellbeing and safety officer in charge of a team of five, was said to be “devastated” when he was escorted out of his office in September last year.

A few days earlier, the council’s HR boss received an anonymous tip-off that Mr Kinsella, from Hawick, was “running a business using council computer facilities”.

Permission was granted to search his business email account which revealed he had sent and received more than 1,000 emails since June the previous year relating to his involvement with O’Neills – an Irish sportswear company.

The council estimated his sideline had generated annual sales of £24,000 – earning Mr Kinsella commission of about £4,800 a year.

An internal probe ensued and he was formally dismissed in November after a disciplinary hearing which he did not attend for health reasons.

Mr Kinsella appealed, but his sacking was confirmed in February by SBC’s staffing appeals committee.

His unfair dismissal application to the tribunal, which was heard over four days in Edinburgh, sought compensation from SBC for pay in lieu of notice and £3,800 for the loss of pension benefits.

The council case centred on its code of conduct for employees, specifically the section stating: “You are not permitted to use the equipment or resources of the council when carrying out work outside the council except with the specific approval of the director or head of service…”.

Solicitor Iain Burke, for Mr Kinsella, said his client’s dealings with O’Neills had terminated in June last year and, in any case, this had never adversely affected his council employment.

He said Mr Kinsella had used flexitime to work at home and at weekends to make up for any lost hours of local authority work.

Mr Burke suggested his client had been “targeted” because of the support he had shown for a colleague who had been dismissed in August last year. He had not been made aware of the code of conduct, either at his induction or at any time since.

He stressed that Mr Kinsella had received “excellent appraisals” from his SBC bosses for the quality of his work and he believed his use of emails fell within permitted “reasonable private use”.

In his written judgement registered this week, tribunal judge James Young rejected Mr Kinsella’s application, adding: “While one local authority may have dealt with this matter with a lesser penalty, it is doubtful any local authority would not consider dismissal in these circumstances.”