Sheriff dismisses childcare worker’s SSSC appeal despite errors in handling key witness

About this case:

• Citation:
  [2026] SC DUN 103
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff Gregor Murray

RA, a registered childcare practitioner, was the subject of a complaint by the Scottish Social Services Council arising from an incident at work on 20 September 2023. It was alleged that she had told a child in a raised voice to “stop this carry on and go to sleep” and had thereby caused the child distress.

She denied the allegation and the matter was referred to an SSSC Fitness to Practise Panel. Following an 11-day hearing which began in August 2024 and concluded in October 2025, the panel found the allegation proved, determined that RA’s fitness to practise was impaired and imposed a warning and conditions on her registration.

The appeal was heard by Sheriff Gregor Murray. The pursuer’s father appeared as her lay representative, while Heeps appeared for the SSSC.

Five grounds pursued

Although ten grounds of appeal appeared in the pleadings, only five were insisted upon at the hearing.

They concerned the panel’s refusal on two occasions to adjourn because of RA’s ill health, its decision to proceed in her absence, its treatment of the evidence of the witness identified as ZZ, the adequacy of its reasons for accepting that evidence and whether the cumulative effect of the alleged errors rendered the proceedings unfair.

Sheriff Murray declined to consider further grounds advanced orally because they had not been included in the pleadings or otherwise properly intimated to the SSSC. He noted that although RA was unrepresented, she remained responsible for complying with court procedure. “A party is not entitled to pursue a case which is not raised in its written pleadings and of which an opponent has not had prior notice”, the sheriff observed.

Adjournment requests properly refused

RA’s father argued that the panel had twice wrongly refused to adjourn the fitness to practise hearing because of her health. By May 2025, the panel had already sat for seven days over a period of nine months. Her father then advised the SSSC that she was recuperating following surgery and required further surgery, and asked that the hearing be postponed for around six months. The SSSC sought further information about her condition and likely recovery time, but none was provided. A hospital letter was produced, but the nature of the surgery and relevant department had been redacted.

The panel refused to adjourn and the hearing proceeded in RA’s absence in June 2025. A second application was made shortly before a further hearing in October on the basis that her recovery had been complicated and she remained in pain. The panel again refused the application after noting that her condition and prognosis had still not been independently vouched.

The SSSC’s practice note required independent medical evidence explaining both the worker’s condition and why it prevented participation in the hearing. Sheriff Murray held that the panel had been entitled to take into account the absence of such evidence, the advanced stage of proceedings, the desirability of concluding the hearing without further delay and the fact that the evidential stage had already ended. He therefore rejected the grounds concerning the refusals to adjourn and the decision to continue in RA’s absence. The sheriff nevertheless accepted that RA had genuinely been unable to attend after May 2025 because she was recovering from surgery for a serious condition and subsequently required further surgery. He added that the applications “were well intentioned and potentially of substance”, but the difficulty was that the panel had not been given the information necessary to assess them. Had the condition and prognosis been disclosed and independently vouched, even on a confidential basis, Sheriff Murray considered that the applications might not have been opposed or could have been granted.

Eyewitness refused to return

The more significant issue concerned ZZ, the SSSC’s only eyewitness to the incident. Her evidence in chief lasted approximately 16 minutes. RA’s father then cross-examined her for around 70 minutes before a break and for a further eight minutes afterwards. During questioning, ZZ became distressed and said that she felt she was being asked the same questions repeatedly and felt “like I’m the one on trial here.”

When asked how much longer the cross-examination was likely to take, RA’s father estimated another hour to 90 minutes. ZZ responded that she was not prepared to answer further questions and described the prospect of another lengthy period of questioning as “ridiculous.” The panel adjourned and asked its clerk to speak privately to her about whether she was able to continue. ZZ subsequently indicated that she was unwilling to return, following which the panel decided to move on to the next witness.

Panel acted without power

Sheriff Murray held that the panel had failed properly to appreciate the circumstances in which the difficulty had arisen. RA’s father was not legally qualified and had no relevant experience. Unlike the SSSC’s presenter, he had to test ZZ’s evidence against earlier events, her previous statements, RA’s competing account and subsequent developments. His estimate of a further 60 to 90 minutes of questioning was, the sheriff said, “obviously excessive” given that most of the cross-examination had already been completed. As the chair was legally qualified, the panel should have recognised that and explained the position to ZZ. It should also have appreciated that ZZ was potentially fundamental to the SSSC’s case, given that she was its sole eyewitness. Sheriff Murray said that the panel ought to have sought submissions from the presenter when the problem arose. Instead, it instructed its clerk to approach ZZ directly during the adjournment.

“It had no locus to do so, as ZZ was the defender’s witness”, he said. After ZZ declined to return, the panel then decided without taking submissions from either side simply to continue the hearing. “No such power was conferred on it by the 2001 Act or the Fitness to Practise Rules. By acting in those ways, the Panel erred.” The panel further erred by failing to mention the problem with ZZ, or explain how it had dealt with it, in its written decision.

Errors did not undermine decision

Those errors were not, however, sufficient to invalidate the panel’s findings. ZZ had completed her evidence in chief and had been fully cross-examined about the circumstances of the alleged incident itself before she left. Her evidence also accorded with two earlier statements she had provided. Importantly, the panel had heard evidence from three other witnesses who said that RA later admitted to them that she had shouted at the child. Sheriff Murray held that those admissions lent support to ZZ’s evidence. The panel had also heard and rejected RA’s own competing account and had provided reasons for doing so. The sheriff noted that neither side had identified authority establishing that a witness’s failure to complete cross-examination automatically rendered the evidence already given unreliable, incredible or inadmissible.

The panel was required to decide the case on the evidence actually before it and was best placed to assess credibility and reliability. Sheriff Murray held that its written decision contained cogent reasons for preferring the SSSC witnesses and could not be characterised as plainly wrong. He concluded that the panel should have referred expressly to the problem with ZZ in its reasons, but that omission did not vitiate its decision.

The grounds concerning ZZ’s evidence, the adequacy of reasons and the cumulative fairness of the proceedings were therefore rejected. The sheriff sustained RA’s plea only to the limited extent of recognising that the panel had erred in its procedure concerning ZZ. As those errors did not otherwise invalidate its decision, he dismissed the appeal.

The question of expenses was left for agreement between the parties, failing which a further hearing could be arranged.