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 QC)

		Royal Courts of Justice Strand London WC2 Thursday, 2nd May 2002

Thursday, 2nd May 2002

1. LORD JUSTICE PETER GIBSON: The appellant, Cecilia Nkengfack, was employed as a school teacher at Albion Primary School by the respondent, the London Borough of Southwark, from December 1989 to 8th January 1999. She was then dismissed for gross misconduct after a disciplinary hearing before school governors that day. An appeal by her was heard but dismissed by other school governors on 24th February 1999. The circumstances of her dismissal were that the acting head of the school, Penny White, thought that absences by the appellant from her teaching duties might be attributable to the appellant working as a hairdresser at the hairdressing salon which the appellant owned. Miss White on 4th December 1998, at a time when the appellant was absent professedly through illness, went with a senior teacher, Michael Bernacki, to the appellant's salon where they saw her working. The appellant claimed that she had been in bed that day with back pains, and denied that she was the person seen by Miss White and Mr Bernacki, but their evidence was accepted by both disciplinary panels.
2. The appellant complained to an Employment Tribunal. She complained of unfair dismissal, race discrimination and sex discrimination. At the hearing before the Tribunal the appellant was represented by counsel other than Mr Panton, who appears for her today. The Tribunal dismissed all her complaints. It identified in paragraph 3 the issues in the case. The issue relating to unfair dismissal was described in this way:

"Did the Respondents act unfairly in the procedure they adopted in dismissing her?"

3. The Tribunal then went on to say what had been alleged; that must be what had been alleged by the appellant. Seven allegations are set out. Allegation 6 was that "mitigation should have been presented after the appeal panel had made its decision rather than before". Allegation 7 was "that both panels had given inadequate consideration to an alternative sanction".
4. The Tribunal, as I have indicated, dismissed all the complaints of unfair dismissal. It expressed its conclusion in this way:

"We ask ourselves whether the disciplinary panel acted fairly when accepting the evidence of Ms White and Mr Bernacki that they had seen the Applicant working in the shop on December 4. We find that they did, following a proper investigation."

5. The Tribunal then referred to matters which had been urged by the appellant, that is to say that someone else was the person who Miss White and Mr Bernacki had seen in the salon, and at the end of the paragraph on unfair dismissal the Tribunal said:

"We consider that it would have been preferable for the Applicant to have been asked whether she had anything to say in mitigation after the decision of the appeal panel to uphold the finding of gross misconduct but again, we do not feel that it is sufficient to render the dismissal unfair. We accordingly dismiss the Applicant's claim of unfair dismissal on the ground that the tribunal acted fairly in accordance with section 98(4) of the [Employment Rights Act 1996]."

6. The appellant appealed. The EAT, His Honour Judge Wilkie QC presiding, at a preliminary hearing allowed the appeal to go to a full appeal hearing on two points, one of which was that the disciplinary panels had given inadequate consideration to a sanction alternative to dismissal which the EAT said was arguably not addressed by the Tribunal. At the hearing of the full appeal the EAT, Mr Recorder Langstaff QC presiding, dismissed the appeal. Much of the judgment is directed to a point no longer relevant on this appeal; but at the end of the judgment, the EAT turned to the question of alternative sanctions. The EAT said this:

"55What Mr Panton says is that a greater examination of the issues was called for by the Employment Tribunal. He emphasised that a decision could have been made by the employer, in a situation where an employee was returning to work on Monday. There might very well have been excusable reasons why she might have been doing some work on a Friday afternoon, and that in the light of that, without there having been any final warning, and without the mistrust and suspicion having been raised with her beforehand, dismissal was not an inevitable penalty.

56Although we consider there is some force in what he has said to us, and it may be that it is a pity for the Appellant that the Employment Tribunal did not have advocacy of Mr Panton before them, nonetheless, they were made aware of the issue. The only question, it seems to us, they having indicated a view upon it, is whether they had sufficiently expressed the reason for it. Their statement is terse. However bearing in mind that they had a number of difficult issues of fact to deal with, in relation to discrimination on the grounds of sex and race, and the principal focus of their case, upon the facts which gave rise to the finding of gross misconduct, we do not think that it was required that the Employment Tribunal should go so far as to set out, in detail, the reasons why they came to the conclusion that it was nonetheless fair for the internal appeal hearing to reach the decision it did, notwithstanding their not having asked the Appellant whether she had anything to say in mitigation.

57It is a matter which they might well, and any other Tribunal might well, expand upon, but we think there is just sufficient for the parties to know why they won and why they lost."

7. Thus, the EAT was apparently interpreting what the Employment Tribunal had said about mitigation as meaning that the respondent's appeal panel had never asked the appellant whether she had anything to say in mitigation.
8. The EAT refused permission to appeal. The appellant sought permission from this court. Laws LJ refused permission on paper. Mr Panton for the appellant then renewed the application at a hearing before Laws LJ on 8th November 2001. The Lord Justice commenced his judgment and refused permission to appeal on one of the grounds which had been sought but which is no longer material. He had turned to the question of the alternative sanction when Mr Panton interrupted the Lord Justice's judgment. The Lord Justice had been commenting on material which Mr Panton submitted should have been admitted before the EAT. Laws LJ said there was no reference to such material in Mr Panton's skeleton argument. At that point Mr Panton produced to the Lord Justice the skeleton argument which he had put before the EAT. Laws LJ then adjourned the hearing on that point to enable Mr Panton to produce the available material. On 13th November there was a further hearing. Mr Panton produced Miss White's witness statement in which she gave evidence that on 3rd December 1998 the appellant had phoned the school to say that she would be returning to the school on Monday 7th December. Laws LJ said in his judgment:

"9In those circumstances it seems to me that it is at least arguable that the Employment Tribunal did not deal with this aspect of the case satisfactorily. As the Employment Appeal Tribunal stated, the comment in the Tribunal below was terse. There is no reference to this telephone call which, as I have indicated, some might think could make a material difference to the perception of what should be the correct sanction. One has to have in mind that a failure to ask the employee whether she has anything to say about penalty is, on the face of it, a want of proper standards of fairness.

10It seems to me that there is room for argument at least to the effect that the Employment Tribunal have not given sufficient reasons for the conclusion they arrived at. With some misgiving, therefore, I propose to give permission to appeal. The permission is limited to this distinct issue relating to the failure of the internal panel to invite mitigation and the Employment Tribunal's treatment of that issue."

9. Thus Laws LJ too appears to have assumed that there had been a failure by one, if not both, of the disciplinary panels to invite the appellant to say what she wanted about mitigation. In fact in the Tribunal's decision there had been this express finding in paragraph 4(h) of the decision:

"The Applicant accepts she was given a chance to speak in mitigation but the panel took the decision to dismiss her for gross misconduct."

10. The panel referred to is the first of the disciplinary panels.
11. We have now been supplied with the minutes of the two disciplinary hearings. Those documents were put before the Employment Tribunal. They show that the EAT and Laws LJ had been proceeding on a false factual basis. At the hearing on 8th January 1999, before the first disciplinary panel, after the evidence and after the Chairman had said that the panel would adjourn to make a decision, John Taylor, a personnel officer for the Local Education Authority, had explained to the appellant the process of mitigation, saying:

"So before sanction panel can hear from you [the appellant] any contribution. You can tell the panel anything you would like them to know."

12. At page 109 there is recorded what must have been said by the Chairman of the panel:

"We have discussed the submissions and decided that the Head and Mr Bernacki did see you.

You can now say something in mitigation."

13. Then after a brief interchange between the appellant and the Chairman, Mr Taylor said:

"You have been invited to tell the panel about your work - to influence them not to take too harsh penalty - lets say dismiss."

14. The appellant made various points in mitigation, such as that when she came to the school she turned the class round. The panel then discussed in private what was to be their decision, and comments about the appellant acting in a deceptive way and undermining trust and confidence were made. The panel then told the appellant of their decision:

"We've decided this is gross misconduct and warrants summary dismissal."

15. It is thus clear that the decision to dismiss was taken after hearing what the appellant had to say in mitigation.
16. The minutes of the appeal hearing show that the question of mitigation was also raised after evidence had been heard and each side had summed up, and after the panel had been discussing what to do. The minutes record the following exchange. The Chairman says:

"Do you want to wait (question put to appellant).

Let's talk about mitigation....

We're going to make a decision - today - I expect in the next half hour.

(Chair asks CN [the appellant] if she wants to wait for the decision and make mitigation if necessary)

The appellant said:

"I don't think so I've said everything I want to."

17. The panel told the appellant that the decision would be put in writing and sent to her in the next day or so. The appellant then left. The panel considered the evidence and reached the decision that the charges against the appellant were found proven, that the offence amounted to misconduct and that the appellant should cease to work at the school.
18. In the circumstances it is perhaps a little surprising that the Employment Tribunal said what it did about mitigation before the appeal panel. If an appellant does not want to wait for a decision, nor to avail herself of an opportunity to say something in mitigation, the appeal panel cannot fairly be criticised for not insisting that the appellant should wait until the decision is announced so that the opportunity is given again to the appellant to say what she wants about mitigation.
19. It seems to me very questionable whether, if the true facts had been appreciated, the EAT would have said what it did about mitigation or Laws LJ would have thought it right to give permission in this case.
20. Before us today, nevertheless, Mr Panton submits that the Employment Tribunal, having identified as an issue the adequate consideration of an alternative sanction, did not consider that issue adequately or at all. He says, correctly, that an Employment Tribunal must reach a conclusion on all essential issues; and for that he referred us to the recent decision of this court in Wheeler v Durham County Council on 23rd May 2001 in which the Master of the Rolls, Lord Phillips, said in paragraph 54:

"In Anya v University of Oxford [2001] EWCA CIV 405, the Court of Appeal held that an Employment Appeal Tribunal must make conclusions on the factual issues essential to its conclusion. It does not follow, however, that an Employment Tribunal has to explore the circumstances of every event in the evidence placed before it. It only has to reach conclusions on the essential issues."

21. The issue identified by the Employment Tribunal in the present case in paragraph 3(1) of the Extended Reasons was whether the respondent acted unfairly in the procedure adopted in dismissing the appellant. The various allegations which the appellant had made, and which are noted by the Tribunal, are best described as submissions, as indeed the Tribunal itself appears to have done when saying in paragraph 9 that it had outlined the gist of the submissions of the appellant earlier in the decision.
22. It is undoubtedly correct that there is no express reference to alternative sanctions in the Employment Tribunal's conclusion on unfair dismissal. But the Tribunal had recorded the respondent's submission:

"The offence was so serious, involving dishonesty, that dismissal was the only realistic possibility."

23. That submission must have been accepted by the Tribunal in finding the dismissal fair. The Tribunal had directed itself correctly by reference to the test in section 98(4) of the 1996 Act which it had quoted. It considered whether the dismissal for the reason shown by the employer, that is to say gross misconduct, was fair or unfair, that question depending on whether in the circumstances the employer acted reasonably or unreasonably in treating that reason as a sufficient reason. It was the action taken by the employer, that is to say dismissal, that fell to be considered, not some other action which the employer might have taken but did not take. If the dismissal fell within the band of reasonable responses to the employee's conduct which a reasonable employer might have adopted, then that is the end of the Tribunal's enquiry. As Browne-Wilkinson J, giving the judgment of the EAT in Iceland Frozen Foods Ltd v Jones [1983] ICR 17 at page 75, said:

"If the dismissal falls within the band it is fair: if the dismissal falls outside the band it is unfair."

24. That test of the band of reasonable responses has recently been reaffirmed as the correct test by this court in Foley v The Post Office [2001] 1 All ER 550.
25. The Tribunal, having found that the respondent had carried out a proper investigation into whether the appellant was seen working in the salon on 4th December and that the disciplinary panels acted fairly when accepting the evidence of the respondent that she was so working, reached the conclusion that the respondent acted fairly in accordance with section 98(4) in dismissing her. It seems to me manifest that the dismissal for the act of gross misconduct complained of fell within the band of reasonable responses.
26. The appellant, who was one of only eight teachers in this small school, had been fairly found to have acted dishonestly, claiming to have been absent from teaching because of illness when she was in fact working in her salon. She herself had said in her originating application in paragraph 10:

"I think that if somebody does work when they are supposed to be at school this is an act of gross misconduct."

27. Mr Panton has submitted before us today the same point which Laws LJ took in respect of the telephone call which the appellant made to the school on 3rd December 1998 to tell the school that the appellant would be back at work on 7th December. He submits that that was a very material fact which went to make the offence not, as he put it, the most heinous act of dishonesty. What he says is that the ordinary bystander would consider it perfectly reasonable that, having notified the school that she was better, the appellant went to work on Friday 4th December in her salon. Had the appellant telephoned the school to say what she would be doing on the Friday, then there would indeed have been no act of dishonesty. But she did not. Instead she maintained throughout that she was ill and at home, and that she was not working; and indeed she produced a witness to support her story. In view of the findings of both of the disciplinary panels, her story was false. It did involve an act of dishonesty and it was plainly gross misconduct. In my judgment the fact that she telephoned the school on 3rd December does not mitigate that one jot.
28. The appellant does not appear to have suggested any alternative sanction, not even when at the first disciplinary hearing she was made aware of the decision that she had been found to have been working in the salon on 4th December and was invited to say what she wanted to say in mitigation. Once her case that she was ill in bed was rejected, in my judgment the respondent was plainly entitled to decide to dismiss her and realistically no question of an alternative sanction ever arose.
29. For these reasons, I for my part have no hesitation in dismissing this appeal.
30. LORD JUSTICE JUDGE: I agree.
31. The events with which we are concerned took place in early December 1998. A disciplinary hearing was held on 8th January 1999 before two governors. On their findings the appellant was guilty of gross misconduct. They were convinced that there was no alternative to summary dismissal.
32. The appellant took the decision to a staff disciplinary appeal hearing. It was held on 24th February 1999 before two different governors. That panel concluded that the conduct established against her amounted to misconduct of a sufficiently serious kind to determine that she should no longer work at the school. Each of those hearings appears to have been conducted with great fairness. The appellant then complained of unfair dismissal, race discrimination and sex discrimination. In a reserved judgment, the Employment Tribunal dismissed all these complaints in October 1999.
33. Having reflected on the papers, and with respect to those who may have taken a different view, I have been unable to discover any realistic basis for impugning the decisions of either the Employment Tribunal, or the staff disciplinary appeal hearing, or indeed the original disciplinary hearing. The appellant herself acknowledged, as my Lord has just pointed out, that she herself accepted that if somebody worked when they were supposed to be at school:

"this is an act of gross misconduct".

34. I cannot conclude this judgment without recording that I have serious concerns about the potentially damaging effect of this protracted litigation on the school; the children, parents and supporters of the school; on the Head Mistress and the staff; and indeed on the appellant herself. At present, at any rate, it is difficult to see how this litigation can have done the slightest good for anybody.
35. I agree with my Lord's reasons for dismissing this appeal.
36. LORD JUSTICE MAY: I agree that this appeal should be dismissed for the reasons given by my Lord, Peter Gibson LJ. I gratefully adopt his account of the facts and the circumstances of the appeal.
37. It has now been established that the appellant was given the opportunity to make submissions in mitigation both at the disciplinary hearing on 8th January 1999 and at the disciplinary appeal hearing on 24th February 1999. The single ground of appeal for which Laws LJ gave permission to appeal was that the Employment Appeal Tribunal was wrong in law to hold that there had been sufficient consideration by the Employment Tribunal of the question whether the disciplinary and appeals panels had given adequate consideration to an alternative lesser sanction to summary dismissal. This is supported by the proposition that it was common ground that the appellant had telephoned the school on Thursday 3rd December 1998 to say that her health had improved and that she would return to the school on the following Monday, 7th December. Mr Panton submits that this might be seen as reducing the seriousness of the appellant's dishonesty. He further submits that since the Employment Tribunal identified the possibility of an alternative sanction as an issue, they should have addressed it explicitly.
38. On the first of these points I, like my Lords, am quite unpersuaded that in the circumstances of this case the telephone call on the Thursday might have been seen as reducing the seriousness of the appellant's dishonesty. On the following day she was, as each of the panels held, working in the salon, but her case throughout was that she was not. The fact that she had announced an intention to return on the Monday does not seem to me to reduce in any way the seriousness of the dishonesty inherent in each of those facts.
39. As to the second point it seems to me that Mr Fletcher is plainly correct in his written submission to this court that in the circumstances dismissal was the only option, and the Employment Tribunal expressly recorded that this was the respondent's submission to them.
40. I agree with my Lord, Peter Gibson LJ, that the Employment Tribunal correctly and adequately addressed the questions of gross misconduct and unfair dismissal. In my judgment there is no material flaw in, or appealable omission from, their reasons.
Order: Appeal dismissed with costs.