A COUNCIL boss who was sacked for selling sportswear on the side while he was at work has lost his case for unfair dismissal.
Hugh Kinsella, a risk, wellbeing and safety manager with Scottish Borders Council, had been selling the sporting goods - including football and rugby strips - for almost nine years at times when he was supposed to be carrying out his council duties.
He used the authority's email system to arrange orders with customers and liaise with sportswear firm O'Neills, totting up thousands of emails and sending and receiving almost 30 a day at the peak of his involvement with the company.
The manager, who had worked for the council since 2005, is believed to have secured annual sales of about £24,000 for O'Neills, pocketing almost £5000 extra each year on top of his £50,000 managerial salary.
Despite his blatant breach of council policies, Mr Kinsella, of Hawick, still tried to sue the council at an employment tribunal.
However, employment judge James Young rejected his case, saying: "If an individual is working for someone else during time he should be working for the council then there is bound to be an adverse effect in the sense he is not giving his full time and attention to his duties.
"The claimant was in a senior position. He was employed in Audit and Risk, being a business section that dealt with compliance, standards and appropriate procedures.
"It was doubtful any local authority would not consider dismissal in these circumstances."
Mr Kinsella's activity was brought to light in September last year when an anonymous report was submitted to the Council's personnel department claiming he was "running a business using (council) computer facilities".
The authority accessed his account and discovered thousands of emails sent and received by the manager in relation to O'Neills. He was sacked last November.
A written judgment on the case states: "The search indicated extensive email correspondence and largely, if not wholly, being conducted during normal office hours."
The tribunal heard from Mr Kinsella's manager, Jill Stacey, chief officer of audit and risk at the authority, who said the discovery came as a "bolt from the blue" and was "unbelievable" because there had never been any concerns about his performance.
The judgment states: "Jill Stacey had 'no idea he was using the email system in this way'. She emphasised her work with her department was to instil values of 'personal integrity, behaviours and standards' and that her expectation would have been that Mr Kinsella would have disclosed such an activity."
Mr Kinsella claimed his activity was within the procedural guidelines on use of the council's email system, but the authority's policy clearly states employees should not "use the email for commercial purposes, product advertisement, profit or gambling".
Even O'Neills raised concern about his use of the council's email system after the firm's legal adviser warned the company may be liable for costs, but Mr Kinsella assured them what he was doing was allowed.
The boss tried to claim he had been unfairly treated by the council because he was too unwell to attend his disciplinary hearing, but Judge Young rejected this.
He also said he had worked extra hours using the council's flexitime scheme, which made up for the time he spent selling the goods, but the tribunal ruled this was not up to him to decide.
A Scottish Borders Council spokesman said: "We accept the findings of the tribunal."
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