England and Wales Court of Appeal (Civil Division) Decisions

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Cite as: [1992] IRLR 362, [1992] EWCA Civ 1, [1992] ICR 706

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JISCBAILII_CASE_EMPLOYMENT

		BAILII Citation Number: [1992] EWCA Civ 1
		Case No.

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(MR. JUSTICE WOOD)

Royal Courts of Justice.

15th May 1992.

B e f o r e :

THE MASTER OF THE ROLLS (Lord Donaldson)
LORD JUSTICE BALCOMBE
SIR JOHN MEGAW
____________________

	COLIN PEET	(Applicant) Appellant
	v.
	NOTTINGHAMSHIRE COUNTY COUNCIL	(Respondent) Respondent

____________________

(Transcript of the Shorthand Notes of the Association of Official Shorthandwriters Ltd., Room 392, Royal Courts of Justice, and 2 New Square, Lincoln's Inn, London, WC2A 3RU)

____________________

MISS A. HAMPTON (instructed by Messrs. J.H. Lawrence & Co. of Newark) appeared on behalf of the Appellant.
MR. JOHN STOPART (instructed by Mrs. J. Francis, Solicitor, Nottinghamshire County Council) appeared on behalf of the Respondent.
____________________

HTML VERSION OF JUDGMENT
____________________

(approved)

LORD JUSTICE BALCOMBE: This is an appeal by an employee from an order of the Employment Appeal Tribunal made on 18th June 1991. By that order the appeal tribunal allowed the employer's appeal from an order of an industrial tribunal registered on 7th August 1989, which had held that the employee had been unfairly dismissed, and directed that the matter be remitted to an industrial tribunal for re-hearing.

The appellant is Mr. Colin Peet, now aged 53. He was employed by the Nottinghamshire County Council from February 1976 as an assistant groundsman at the Minster School at Southwell in Nottinghamshire. On 14th May 1988 Mr. Peet's 14-year old daughter, who was a pupil at the Minster School, made a complaint to the deputy head teacher. As a consequence of that complaint Mr. Peet was arrested and on 20th May 1988 charged with indecent assault. Mr. Peet appeared before the magistrates and was released on bail. On 23rd May 1988 the Council was informed of the charges against Mr. Peet; on 24th May he was visited by the Council's playing fields officer, Mr. Dines, and Mr. Peet told Mr. Dines that he would be pleading guilty to the charges against him. On 25th May Mr. Peet was suspended on full pay pending a disciplinary hearing which was convened for 22nd June. However, on that date Mr. Peet told members of the disciplinary panel that he had been advised by his solicitor to plead not guilty and so the hearing was adjourned until after the court hearing.

On 1st August 1988 Mr. Peet pleaded guilty to a charge of indecent assault against his daughter. He pleaded not guilty to a charge of incitement to gross indecency with a child. He appeared before Newark Magistrates on 5th September 1988, when the prosecution offered no evidence on the charge of gross indecency, which was then dismissed. However, he asked for two offences of indecent conduct (with two other elder daughters) to be taken into consideration with the admitted offence of indecent assault. The prosecution did not disclose details of the offences which were admitted, but it was stated in court that they were of a serious nature. Mr. Peet was then remanded on bail for social enquiry reports and his case was adjourned for sentence to 7th October 1988.

The hearing on 5th September was attended by a representative from the County Solicitor's office, who reported what had transpired to the Council. The disciplinary hearing was then re-convened for 3rd October 1988 and a request by Mr. Peet's solicitor that it should be postponed until after the hearing for sentence on 7th October was refused.

At the disciplinary hearing on 3rd October, at which Mr. Wilson, the Council's principal education officer, presided, Mr. Peet was represented by Mr. Martindale from his union. The following paragraphs from the reasons of the industrial tribunal state what happened at that hearing:

"12. The applicant was asked why he had changed his plea and he stated that he had admitted the indecent assault to prevent his daughter from having to attend at court. He gave his version of the facts stating that he had cuddled his daughter, but he had not touched his daughter's body and no article of clothing had been removed. He further stated that during his 12 years in post, he had not interfered with children. Mr Wilson observed that the court had viewed the offences to be of a serious nature. His concern was risk to school children, with whom the applicant would have contact in the course of his employment as a groundsman.

13. Mr. Martindale enquired about the possibility of alternative work where the applicant would not be working in proximity with children. Mr. Dines, who was present at the meeting and is himself an experienced magistrate, was uneasy about making a decision on what to do without further information. A telephone call was thereupon made to a social worker concerned with the case who was not prepared to give any information except to say that the offence was of a serious nature.

14. The applicant was told thereafter at the meeting, without further enquiry, that he was to be dismissed. He was told that an attempt was to be made to seek redeployment in the Highways Department, but without any guarantee of this being successful. The applicant was advised of his right of appeal."

On the same day, 3rd October 1988, the Council sent to Mr. Peet a formal letter of dismissal giving him 12 weeks' notice expiring on 25th December 1988 and telling him that he would not be required to attend work during the period of notice. The grounds of the decision were expressed in the following paragraph of the letter:

"The grounds of the termination of your employment are related to your conduct in that your admission of indecent assault against your daughter and two other admitted offences of indecent conduct means that I can no longer continue your appointment with the Council Playing Fields Service where there is substantial access to children."

By the letter Mr. Peet was also told of his right of appeal. He did not exercise that right.

On 7th October 1988 Mr. Peet appeared for sentence before Newark Magistrates and a probation order was imposed. Also on 7th October 1988 the Council's Highways Department decided that it was not prepared to consider him for a post as a road worker because of his sickness record and this decision was communicated to Mr. Peet on 17th October 1988.

Mr. Peet filed his originating application with the industrial tribunal on 26th January 1989 claiming re-engagement with the Council. By their answer filed on 3rd March 1989 the Council gave their reasons for Mr. Peet's dismissal as follows:

"There were two main reasons for the Applicant's dismissal.

(a) Conduct - the Applicant had pleaded guilty to a charge of indecent assault against his daughter and asked for two charges of indecent conduct to be taken into account. He was employed by the Respondent Authority as an Assistant Groundsman at The Minster School, Southwell and in the course of his employment had daily, regular contact with unsupervised children. It was felt that the offence which the Applicant pleaded guilty to was one that made him unsuitable for this type of work.

(b) Some other substantial reason of a kind such as to justify dismissal of an employee holding the position which he held - the Respondent Authority owe a duty to both the children attending this educational establishment and the parents of those children that they will not expose those children to unnecessary or known risks. To allow the Applicant to continue his employment would have been an unacceptable risk." The hearing before the industrial tribunal was fixed for 29th June 1989, and on 19th May the Council requested an adjournment on the grounds that one of their most important witnesses (Mr. Wilson) would then be on leave. The request was refused and the hearing took place on 29th June. The Council tendered a written statement from Mr. Wilson, which was admitted in evidence with the consent of Mr. Peet's solicitor, but without his necessarily agreeing to all the contents of the statement.

The industrial tribunal by a majority decided that Mr. Peet had been unfairly dismissed. The member in the minority accepted the argument for the Council that the information which they had on 3rd October 1988 about Mr. Peet's admissions to the magistrates' court was enough to warrant dismissal, and that the dismissal was therefore not unfair.

The majority of the industrial tribunal took a different view. They directed themselves correctly as to the law in the following passages from their reasons:

"The respondents have to satisfy the Tribunal that there was a reason for the dismissal which was sufficient for the purposes of Section 57 of the Employment Protection (Consolidation) Act 1978. The tribunal is satisfied that indecency outside the course of employment, which is why the applicant was dismissed, can be a sufficiently substantial reason for the dismissal of an employee.

... it is not for us to decide the case according to what we ourselves would or might have done had we been the employers in such a situation. We have to judge according to whether the respondents acted reasonable or unreasonably. We have both formed the view that the dismissal of the applicant was unfair."

It is not entirely easy to ascertain from the reasons of the industrial tribunal the precise grounds which led the majority to their decision. The following paragraphs of the reasons are relevant:

"25. The decision to dismiss the applicant was made more than four months after the applicant had first been charged but four days before his appearance for sentence at which it was known that a social enquiry report would be produced in court. Mr Wilson knew no more of the facts of the case than what he was told by the applicant. It has not been possible to question Mr Wilson about the considerations which led to his decision to dismiss. The probability is that he had made up his mind to dismiss some time well in advance of the final disciplinary hearing ...

29. There is no indication by Mr Wilson in his written statement that he sought any advice from any medical or other specialised source on the extent of any risk. The applicant, unlike a teacher, had no influence over or responsibility for the welfare of children. His contact with them in the course of his duties at the school was no more than casual. It is at least open to doubt whether his admitted behaviour towards his own daughters is indicative of a risk of similar behaviour towards other children.

30. It is the finding of the majority of the Tribunal that Mr Wilson did not investigate the circumstances sufficiently before his decision to dismiss. No consideration was given prior to the announcement of the dismissal to the question raised by Mr Martindale of whether the applicant might be found other work where he would not be in proximity with children ...

32. It is impossible to support the passage in the final paragraph of Mr. Wilson's statement that:-

'Every effort was made to arrange other work for Mr. Peet.' The steps which were taken by Mr Dring were described by Mr Lawrence as perfunctory and we agree.

33. The majority of the Tribunal takes the view that if the respondents had approached the matter fairly and properly, if they had been fair in the way in which they investigated the matter and had ensured that they were properly informed about the circumstances, there would have been some chance (and we put it no higher than that) that at a disciplinary hearing held after the 7 October, the applicant would not have been dismissed."

The appeal tribunal in its judgment identified three principal issues before the industrial tribunal:

1) Was the Council entitled to hold the reasonable belief that Mr. Peet had committed acts of indecency with his daughters?

2) What was the risk involved in retaining Mr. Peet in his employment as a school groundsman?

3) Had the Council made a reasonable investigation of possible alternative employment for Mr. Peet?

The appeal tribunal held that the industrial tribunal had erred in law in the answers it gave to each of the first two questions. Although its negative answer to the third question was a question of fact with which the appeal tribunal could not interfere, the appeal tribunal took the view that they could not be satisfied that the industrial tribunal would undoubtedly have reached the decision which it did if it had been correct in its application of the law, since their earlier findings may well have coloured their view on the search for alternative employment. They therefore remitted the matter for a re-hearing.

On the first question identified by the appeal tribunal, Miss Hampton (to whose able arguments on behalf of Mr. Peet I would like to pay tribute) has persuaded me that there was no error on the part of the industrial tribunal. Paragraph 25 of their reasons does not in my judgment amount to a finding that the Council was not entitled to hold the reasonable belief that Mr. Peet had committed the offences in question. As Miss Hampton very properly accepted, when an employee has pleaded guilty to an offence, or has been found guilty by a decision of a court or the verdict of a jury, it is reasonable for an employer to believe that the offence has been committed by the employee. Any other conclusion would be ridiculous. All the considerable learning on this point - see, e.g. British Home Stores Ltd. v. Burchell [1980] ICR 303 n - is directed to the case where there has been no plea of guilty or a finding of guilt by a competent court of law.

The second issue was the finding by the industrial tribunal that the Council had not sufficiently investigated the circumstances of Mr. Peet's offences, and could not therefore have made a proper assessment of the risk involved in retaining Mr. Peet in his employment. On this issue the judgment of the appeal tribunal given by the President (Mr. Justice Wood) contains the following passage:

"It seems to us that ... so far as assessing the risk is concerned, the County Council had before them sufficient upon which to reach its assessment.

The industrial members sitting with me take the view that no other course was open to the County Council than to take the view that Mr Peet could not continue in his employment as an assistant groundsman at the Girls' School and that in the circumstances no criticism could properly be brought against them. Whilst I am content to join them in that view I also take the view that the Industrial Tribunal in the present case erred in law in that it substituted its own view for the view of the employer and the industrial members join me in accepting that the Tribunal did so."

I agree with both these conclusions. The final sentence of paragraph 29 of the industrial tribunal's reasons, cited above, indicated that the majority were, contrary to their previous proper direction to themselves, substituting their own view for that of the Council. I also agree with the view of the industrial members of the appeal tribunal (in which the President joined) that the Council had no option but to take the view that Mr. Peet could not continue in an employment which brought him into even casual contact with young girls, and that the finding to the contrary by the majority of the industrial tribunal was perverse.

That leaves the third issue, the question of alternative employment.

Section 57(3) of the Employment Protection (Consolidation) Act 1978 as amended provides that:

"... the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and that question shall be determined in accordance with equity and the substantial merits of the case."

At first it appeared to me that where, as here,

1) an employee is employed in a particular capacity;

2) his conduct renders him unsuitable for continued employment in that capacity; and

3) that conduct, and his consequent unsuitability for the job, was the employer's reason for dismissing him,

the question whether the employer might have been able to offer the employee alternative employment elsewhere in the employer's organisation cannot be relevant to the fairness or unfairness of the dismissal; no question of alternative employment can arise until the original employment has been determined. However, on consideration I have come to the conclusion that that is to give the words of section 57(3), quoted above, too narrow and technical a construction. Even though the nature of the employment is to be changed, that could be achieved by a variation of the terms of the original employment. Further, there are dicta in certain of the cases which suggest that the possibility of alternative employment must be a relevant factor for an employer to take into account before dismissing an employee from the particular employment for which he has become unsuitable. See Dobie v. Burns International Security [1984] ICR 812 , 815C; Henderson v. Masson Scott Thriswell Engineering [1974] I.R.L.R. 98 , 99, paragraph 18; c.f., Garricks (Caterers) Ltd. v. Nolan [1980] I.R.L.R. 259 . Accordingly I am satisfied that, in an appropriate case and where the size and administrative resources of the employer's undertaking permit, it may be unfair to dismiss an employee without the employer first considering whether the employee can be offered some other job, notwithstanding that it may be clear that he cannot be allowed to continue in his original job.

However, the majority of the industrial tribunal appear to have been of the view that the question of alternative employment for Mr. Peet should have been investigated before he was given his notice of dismissal on 3rd October 1988, notwithstanding that his dismissal did not take effect until 25th December - see the first two sentences of paragraph 30 of their reasons cited above. There is nothing in the provisions of section 57(3) of the 1978 Act to suggest that the question of alternative employment must be investigated before the giving of a notice to dismiss, rather than before the dismissal effected by the notice.

In my judgment an employer does not act unreasonably, in circumstances such as those of the present case, in giving a notice of dismissal before he has investigated the possibility of alternative employment, provided that he makes such investigations before the notice takes effect. If the giving of the notice were the operative date, it would mean that an employee would be unfairly dismissed (by the giving of the notice) notwithstanding that during the period of the notice the employer found him alternative employment and the notice never took effect. Such a construction of section 57(3) -that the investigation of alternative employment must be made before the notice of dismissal - would also be inconsistent with the provisions of section 67(4)(a) of the 1978 Act, which make it clear that in the ordinary case it is the dismissal which is the operative act, not the notice. It is not possible to discover from the reasons of the majority of the industrial tribunal how much weight they attached to the failure to investigate the possibility of alternative employment before the notice of 3rd October was given. In so far as they clearly did attach weight to this factor, they were wrong so to do.

In my judgment the majority of the industrial tribunal were also unfair in criticising Mr. Wilson's statement that "every effort was made to arrange other work for Mr. Peet", when the refusal to grant an adjournment meant that Mr. Wilson was given no opportunity to justify his statement.

For all these reasons I agree with the decision of the appeal tribunal that the industrial tribunal's findings of fact on the question of alternative employment cannot stand and that the matter must be remitted for re-hearing -preferably to a differently constituted industrial tribunal. I would dismiss this appeal.

SIR JOHN MEGAW: I agree.

THE MASTER OF THE ROLLS: I also agree.

(Order: Appeal dismissed; no order for costs save legal aid taxation of appellant's costs)