ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL
(HIS HONOUR JUDGE MCMULLEN QC)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MOORE-BICK
LORD JUSTICE GROSS
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London Borough of Hackney
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Ms Tuck appeared on behalf of the Respondents.
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Lord Justice Pill:
"The agenda aims [that is Every Child Matters ] to ensure that children at risk of harm and neglect are protected from negative outcome and are instead supported to develop to their full potential."
"I simply record for those who may be concerned with it that this is a skeleton argument prepared by Mr Owugah of high quality and may well be of assistance to the court."
"...the images were unacceptable and inappropriate, that two video images retrieved under the [applicant's] log in and password and were totally unacceptable in the school at any time."
The school "had no concern about the claimant's work ability" but "it was an issue of trust and a concern for the future".
"1. that you sent and received extremely sexually graphic and explicit, inappropriate video material in the workplace;
2. that you used school computer(s) in carrying out these activities and thus failed to adhere to policies and expectations with use of school computers and the internet.
3. that you had complete disregard in a school context, for the welfare of the other people who could have access to the inappropriate material that was being circulated."
The tribunal cited at length the findings of the disciplinary tribunal and I will refer to those.
"The point is that such material should not be accessed by teaching staff during school hours on school premises or forwarded to other teachers."
Secondly, the panel found "that you used school computers in carrying out these activities and thus failed to adhere to policies and expectations with use of school computers and the internet". It commented:
"The panel agreed that there was no specific policy on internet usage in place at Haggerston School but you were reminded that your professional judgment should have been exercised in this regard and that you should have been aware of the totally inappropriate nature of having such material in a school environment bearing in mind the protection of children. You did not appear to take on board the gravity of such sexually explicit material in a school environment. "
Thirdly, the panel found:
"...that you had complete disregard in a school context to the welfare of young people who could have access to the inappropriate material that was being circulated."
In a commentary the panel stated:
"...that the school justified its interference with your right to freedom of expression on the basis that the head teacher had a clear right and duty to protect the girls at Haggerston School from exposure to such material and to investigate such allegations accordingly."
"In summing up I would like to advise you that the panel has found the allegations of gross misconduct against you proven and your misconduct was of such a serious nature that the employer is no longer prepared to tolerate your continued presence."
"A child seeing such images would not be enriched by the experience but would not suffer any harm."
That approach of the applicant is consistent with other parts of her case as has been summarised. The tribunal had not found the approach to pornography of the applicant acceptable in the context of Haggerston School. This misunderstanding of the EAT is not in my judgment material to its overall conclusion.
"Gross misconduct is defined as misconduct of such a serious nature that the employer is no longer prepared to tolerate the employee's continued presence at the place of work. Where allegations are substantiated they may lead to a hearing panel being convened and dismissal proceedings invoked."
"I do not think it is possible to say confidently in this case that if the matter is remitted on the basis that this court has indicated, it is inevitable that an industrial jury will consider that Mr. Wilson was fairly dismissed."
"If an employment judge reached his conclusion by applying the wrong legal principles, it is no answer to a challenge to his decision to say that there was evidence which would have entitled him to come to the same decision had he approached the matter correctly. It may be that he would have reached a different conclusion if the right test had been applied. Accordingly, in the usual case there needs to be a remission in those circumstances. It is only if the decision is "plainly and unarguably right" notwithstanding the misdirection (see Dobie v Burns International Security Services  ICR 812, 818 per Sir John Donaldson) that the Tribunal's decision can stand. This is essentially the same principle as that which dictates that an appeal court can substitute a different decision only if the employment tribunal decision is plainly wrong."
"Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers."
"The exercise of these freedoms, since it carries with it duties and responsibilities..."
And grounds upon which a state is entitled and its organs are entitled to limit that freedom are set out including "the protection of health or morals".
"What matters is not that courts and tribunals should adopt a set formula for determining proportionality, but that they should have proper and visible regard to relevant principles in making a structured decision about it case by case. It is not sufficient, as still happens, for the Tribunal simply to characterise something as proportionate or disproportionate: to do so may well be a failure of reasoning amounting to an error of law."
"The claimant's complaint that she has been unfairly dismissed fails and is dismissed.",
was an entirely justified conclusion. Notwithstanding the arguments placed forward both in writing and orally, I see no real prospect that upon even fuller consideration of the material this court would offer and provide a remedy to the applicant. In those circumstances I would refuse permission to appeal.
Lord Justice Moore-Bick:
Lord Justice Gross:
Order: Application refused