A police worker who failed to divulge information about his fugitive sex offender brother has won a second chance to claim compensation for unfair dismissal.
• Police worker, and former police officer, Andrew Cusick’s twin brother Martin, also a former police officer, fled to Canada after being placed on the sex offenders’ register after a five-year sentence for abusing three girls
• Andrew Cusick was sacked by Strathclyde Joint Police Board after withholding information from police on the whereabouts of his brother during questioning
• Mr Cusick was awarded compensation over his sacking, but the decision was later reversed
Andrew Cusick was initially awarded £26,649 by an employment tribunal over his sacking by Strathclyde Joint Police Board for staying silent when his twin, Martin, fled Scotland for Canada.
That ruling was later reversed on appeal, but now Mr Cusick has convinced judges at the Court of Session in Edinburgh that a re-hearing should take place before the tribunal.
Mr Cusick, 56, served 30 years as a police officer and, as a civilian, became a training officer in 2005.
His brother, also a former policeman, had been convicted of abusing three girls and was jailed for five years in 1996. He was put on the sex offenders’ register indefinitely and was required to provide details of any intention to leave the UK.
In October 2005, Martin Cusick left the country without informing the authorities and a warrant was issued for his arrest.
Andrew Cusick had known the police were looking for his brother. He received information about his whereabouts but withheld it from officers, in spite of being questioned specifically. Eventually, in 2008, he revealed that he thought his brother was in Canada, and he provided an email address and a telephone number for him. He said he had been told his brother was working as a taxi driver.
Martin Cusick was traced and arrested. He was returned to Scotland and received a 30-month prison sentence for fleeing.
Andrew Cusick was held by the police board to have been guilty of gross misconduct and was summarily dismissed.
He took a claim for unfair dismissal to an employment tribunal in Glasgow, which ruled in his favour and ordered his reinstatement and awarded compensation.
The police board had the decision reversed at the employment appeal tribunal (EAT). Next, Mr Cusick challenged the EAT’s judgment at the Court of Session before Lords Clarke, Hardie and Osborne.
In their judgment, Lord Clarke said that both sides in the dispute had conceded at the tribunal hearing that there was no legal obligation on Mr Cusick, as an employee of the board rather than the police force, to have provided the information and to have co-operated with the police.
However, that concession by the board had been withdrawn before the EAT, which criticised as “blinkered” and “ill-founded” the tribunal’s approach to the case.
The EAT had stated: “The implication of the [tribunal’s] conclusion was that, in discharging the role for which he was employed - providing assistance to police constables - Mr Cusick owed no duties to anyone...”
Lord Clarke said the judges found it curious that the EAT should have been so critical of the tribunal without a word of crtiticism against the police board for the concession it had made initially.
The judges also felt the EAT had gone beyond its remit, as an appeal body, in deciding the case on the basis of what it considered to be the facts. It was for an employment tribunal to establish the facts, and the EAT ought to have remitted the case to the tribunal for a fresh hearing under the changed circumstances of the withdrawing of the concession.
“It is clear to us that the case has never been properly dealt with either before the employment tribunal or the EAT. Having regard to the very special circumstances of the case, it is important the issues are fully and properly ventilated.
“We allow the appeal from the decision of the EAT and remit the case back to the employment tribunal to consider the whole case of new,” said Lord Clarke.
The police board was found liable for Mr Cusick’s legal expenses. The judges said the board had been “largely responsible for all that has ensued to date.