England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN EMPLOYMENT APPEAL TRIBUNAL
(Mr Recorder Langstaff)

		Royal Courts of Justice Strand London WC2 Thursday, 5th September 2002

Thursday, 5th September 2002

1. LORD JUSTICE TUCKEY: This is an application for permission to appeal by Mrs Gordon from a decision of the Employment Appeal Tribunal made at a preliminary hearing in which it dismissed two appeals by the applicant from the South London Employment Tribunal. That Tribunal had dismissed the applicant's claims for unfair and wrongful dismissal.
2. The applicant was employed as the Deputy Head of the respondent's Church of England primary school. On 25th February 1999 she was suspended pending a disciplinary hearing in accordance with the Lewisham Borough Council's Disciplinary Code. The hearing took place on 18th May, when the panel found "a failure to comply with reasonable management instruction and undermining the head teacher's authority and continuous unprofessional behaviour by the applicant." They considered that this amounted to gross misconduct and recommended the appellant's dismissal. The appellant exercised her right of appeal to another panel of the governors, but her appeal was dismissed. She was subsequently dismissed summarily, that is to say without notice.
3. She then took her case to the Employment Tribunal. After a hearing which lasted six days, the Tribunal unanimously dismissed her unfair dismissal claim. They concluded that, although the respondents should have followed the diocesan disciplinary code provided for in the applicant's contract of employment, there had in fact been no breach of this latter code. The procedure followed by the school was, they found, exemplary and not in any way unfair. They rejected the applicant's allegation that the head teacher had engineered her dismissal and found that the reason for that dismissal related to her conduct, as identified by the first disciplinary panel, and that dismissal was reasonable in all the circumstances.
4. The Employment Tribunal did not at this stage deal with the applicant's wrongful dismissal claim because of an earlier ruling. This ruling, however, was reversed by the EAT, and so the same Employment Tribunal subsequently considered the claim for wrongful dismissal. Here the applicant complained that the use of the wrong disciplinary code was a breach of contract for which she was entitled to damages. The Employment Tribunal concluded, in effect, that the applicant had suffered no loss as a result of this breach. The applicant's other complaint was that she was entitled to contractual notice of termination - that is to say a notice giving her three months' notice - which would have had the effect of putting her claim beyond the date when the law was changed to raise the limit for compensation in this type of case. The Tribunal, however, held that the respondent was entitled to dismiss her summarily for gross misconduct.
5. Before the EAT the applicant was represented by counsel appearing under the Employment Law Appeal Advice Scheme. He took a number of points which were not taken before the Employment Tribunal or in the applicant's notice of appeal to the EAT. It is not necessary to refer to these. He also argued that the Employment Tribunal were wrong to conclude that dismissal was a reasonable response to the misconduct which they found, given that the applicant had the impression that the school were trying to get rid of her. The EAT rejected this argument by referring to a passage in the Employment Tribunal's decision from which it was apparent that when considering the reasonableness of the respondent's response the Employment Tribunal had regard to the appellant's seniority and to the events which led up to her suspension, including the fact that her behaviour had not improved despite letters from the head teacher complaining about it. As to the wrongful dismissal claim, counsel argued that the Employment Tribunal were wrong to conclude that the applicant's conduct amounted to gross misconduct. The EAT disagreed. This was a question of mixed law and fact which the Employment Tribunal were entitled to answer as they did.
6. The applicant settled her own notice to appeal to this court and prepared a skeleton argument in support of her application for permission to appeal. She has addressed me this morning on what she considers to be the important points for my consideration with courtesy and clarity for which I am grateful.
7. Dealing with her unfair dismissal claim, she claims that the EAT were wrong to conclude that the respondent had acted unreasonably in dismissing her. At no time had she been given any formal warnings, and the head teacher had been trying to get rid of her. She elaborated on why that was so by reminding me this morning of the fact that she believed that they wanted to dismiss her because of her age, of the fact that she claims that they invented a request by her for early retirement and supplied her with details of how she could go about doing that, and also they sent her a "stepping down" letter, that is to say a letter which invited her to consider whether she was prepared to take a more lowly job. Those were matters, the applicant submits, which the Employment Tribunal and the EAT in their turn failed to take proper account of.
8. In her written material she says that Ofsted, who had been critical of the applicant's capability when they inspected the school in the autumn 1998, were wrong. She emphasises correctly that she was not dismissed for any reason of capability, as the findings of the disciplinary panel and the Employment Tribunal make clear.
9. Dealing with her wrongful dismissal claim, she says that the use of the wrong procedure was a breach of contract; that if the right procedure had been used she would not have been found guilty of gross misconduct and so would have been entitled to contractual notice.
10. The applicant also relies on the fact that on 25th February when she was summoned to a meeting with the head teacher to discuss her conduct she had asked for a union representative to be present. He was not available to attend that meeting. She says this does not appear to have been considered by either tribunal.
11. All these complaints are labelled by the applicant as "errors of law". In truth, however, they are not. What the applicant is saying, in substance, is that her conduct did not justify summary dismissal and that the Employment Tribunal and the EAT were wrong to conclude that it did. The issues she raises are not issues of law at all. There is little between the two disciplinary codes. Both laid down fair procedures and would in this case have produced the same result. Whilst, therefore, it was a breach of contract to use the Council Code, no loss was caused by this breach. Whether the respondent was entitled to treat the applicant's misconduct as justifying dismissal was pre-eminently a question of fact for the Employment Tribunal, who heard all the evidence during a lengthy hearing and correctly directed themselves as to the test which they had to apply. The same can be said of their characterisation of the misconduct as gross. This was a question of degree which the Employment Tribunal properly addressed.
12. The applicant's other complaints are self-evidently about the Employment Tribunal's findings of fact, which could not have been the subject of appeal to the EAT, still less to this court which is only concerned with issues of law.
13. I am afraid there are no arguable issues of law raised by the applicant and so, sympathetic though I am to her (because she obviously still strongly believes that she was mistreated by her former employers), this court cannot interfere with the decisions of the tribunals who have dealt with this matter and reached the conclusions to which I have referred.
14. For these reasons the EAT were obviously right to dismiss the applicant's appeal, and she has no real prospect of successfully appealing their decision to this court. Permission to appeal must therefore be refused.
Order: Application refused.