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Sacked joiner’s lawyer says city council’s appeals could cost taxpayers over £100,000

Danny Devine.
Danny Devine.

Dundee City Council has been severely criticised for wasting taxpayers’ money after the Court of Session ruled it must pay appeal expenses in the case of a man who was ruled to have been unfairly dismissed by the council.

Tribunal lawyer Danny Devine of Dundee firm Muir, Myles, Laverty says the ruling by the Court of Session could result in a six-figure bill to taxpayers after the hearings in Edinburgh.

A tribunal in Dundee found his client Benjamin Sharp, 60, who had been employed with the council for almost 36 years before being sacked in 2009, was unfairly dismissed.

The council appealed that decision, which was upheld by Lady Smith at an appeal tribunal hearing in Edinburgh.

Mr Devine then appealed that decision to the Court of Session, where three judges threw out Lady Smith’s decision and ordered the case be remitted back to the original employment tribunal, awarding 75% of the appeal expenses to Mr Sharp.

The decision could eventually cost the city council a six-figure sum in legal fees, Mr Devine says.

He said: “My personal views of the case are that it is a complete waste of taxpayers’ money. Dundee City Council has engaged advocates and also a QC/senior counsel and it must be costing thousands of pounds.

“They now have to pay 75% of the Court of Session action and that in itself will be very expensive as there was also a lot of preparation by our advocate, my fees, my Edinburgh agent’s fees and two days of hearing evidence.”

Mr Devine says if Mr Sharp is successful at the new tribunal, he will be seeking full compensation, dating back four years, for Mr Sharp.

“That total award may exceed six figures,” he added.

Mr Sharp was dismissed from his job as a joiner in September 2009, after being off work with depression and anxiety for just over a year.

The tribunal heard that, despite the council’s own doctor stating that his health was improving and he would be able to return within one to three months, management terminated his employment on the same day the doctor’s written report was received.

The panel ruled the council’s handling of the dismissal was flawed but the council appealed that to the Employment Appeal Tribunal in Edinburgh.

Lady Smith upheld the appeal, stating the original tribunal “erroneously” required the employer to hold further medical inquiries before determining dismissal.

She also remitted the case to a fresh tribunal to consider whether the council could reasonably have been expected to wait longer.

Mr Sharp, in turn, appealed that decision to the Court of Session, which found that criticism by Lady Smith of the original employment tribunal’s decisions on fairness and on the relevancy of his GP certificate were “misplaced” and her criticism of the tribunal on several other matters was “unjustified”.

However, in allowing Mr Sharp’s appeal, the panel remitted the case back to the employment tribunal to consider issues raised by the Court of Session panel, that the original tribunal judgment was lacking in certain respects.

In addition, the Court of Session panel ruled that the same employment tribunal judges should, if they still find Mr Sharp’s dismissal unfair, determine the appropriate remedy (award) after the city council’s legal team had made a motion that a new tribunal should be held for that purpose.

A council spokesman said: “It would not be appropriate for the council to comment during an ongoing legal action as this case is returning to an employment tribunal.”

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